Gad v Health Care Complaints Commission
[2002] NSWCA 111
•24 April 2002
CITATION: Gad v Health Care Complaints Commission [2002] NSWCA 111 FILE NUMBER(S): CA 40899/01 HEARING DATE(S): 21 March 2002 JUDGMENT DATE:
24 April 2002PARTIES :
Dr Monier Gad (Appellant)
Health Care Complaints Commission (Respondent)JUDGMENT OF: Meagher JA at 1; Sheller JA at 2; Stein JA at 3
LOWER COURT JURISDICTION : Medical Tribunal of NSW LOWER COURT
FILE NUMBER(S) :MT 40035/99 LOWER COURT
JUDICIAL OFFICER :Karpin AJS and members
COUNSEL: J R Young (Appellant)
P E Blacket SC (Respondent)SOLICITORS: Colin Daley Quinn (Appellant)
Health Care Complaints Commission (Respondent)CATCHWORDS: MEDICAL NEGLIGENCE - professional misconduct - unsatisfactory professional conduct - Medical Practice Act 1992, ss 36, 37 - inappropriately administered testosterone injections to minor - miscellaneous powers and discretions of Medical Tribunal - Briginshaw Standard - whether procedural fairness afforded to appellant - whether appropriate penalty - D LEGISLATION CITED: Medical Practice Act 1992
Pharmacy Act 1964
Poisons and Therapeutic Goods Regulation 1994CASES CITED: Mifsud v Campbell (1991) NSWLR 728
Bannister v Walton (1993) 30 NSWLR 699DECISION: Appeal dismissed with costs
CA 40899/01
MT 40035/99Wednesday, 24 April 2002MEAGHER JA
SHELLER JA
STEIN JA
The appellant, Dr Monier Gad, is appealing from a decision made by the Medical Tribunal of NSW on 19 October 2001. In those proceedings the Tribunal found that the appellant had administered testosterone injections to a 16 years and 9 month old school girl (‘A’) over a six-week period and also supplied her with a container of Andriol tablets to take daily. The purpose of the treatment was to assist A to put on weight. Over the six-week course of the injections and after taking the tablets daily, A developed an increase in hair on her body, face and limbs, a deepening of her voice, cystic acne and disruption to her menstrual cycle.
The Tribunal ordered that the appellant’s name be removed from the Register of Medical Practitioners and that he not be permitted to seek to be restored for a period of three (3) years.
On appeal the appellant argued that the Tribunal:
1. Capriciously preferred the medical opinion of Professor Eden over Dr Tynan;
2. Failed to take into account the absence of pain associated with the injections as evidence that the injections were not of Sustanon;
3. Capriciously and without giving proper reasons rejected the evidence of Zeinab Mustapha;
4. Erred in rejecting the evidence of Mr Hanna, a pharmacist;
5. Erred in its approach to the appellant’s ‘circumstantial case’ particularly the finding that the only plausible explanation for the patients elevated testosterone was that the appellant had injected it into A over six weeks;
6. Misapplied the Briginshaw standard;
7. Erred in finding that the appellant had falsified A’s records;
8. Denied the appellant procedural fairness;
9. Did not have regard to the particulars of complaint in finding in its decision that the appellant had falsified the patient’s records;
10. Erred in relation to s 37 of the Medical Practice Act by finding that the totality of the practitioner’s conduct in relation to his treatment of A, constituted professional misconduct; and
11. Erred in the exercise of its discretion and that the penalty was inappropriate.
Held:
On the appeal , per Meagher JA, Sheller JA, Stein JA agreeing:
1. There is no merit in the ground of appeal that the Tribunal capriciously preferred the opinion of Professor Eden over Dr Tynan.
2. The patient’s evidence of feeling no pain upon receiving the injections is of no significance. The experience of pain is a very subjective matter. The evidence would not have significantly affected the Tribunal’s determination of the principal issue of whether the appellant administered testosterone injections to her.
3. The Tribunal did not act capriciously in rejecting the evidence of Zeinab Mustapha.
4. Mr Hanna’s evidence would have been of minimal assistance to the appellant and would not have affected the Tribunal’s findings about the appellant’s conduct concerning the disputed receipt. These findings were open to be made by the Tribunal.
5. There was no error in the Tribunal’s approach to the appellant’s ‘circumstantial case’. It was open for it to conclude that there was no other explanation for the clinical findings, and that the only plausible explanation was that the appellant had administered testosterone to A.
6. The Tribunal did not misapply the Briginshaw standard.
7. The grounds relating to falsification of records should be upheld. Falsification of the records had never been particularised, nor admitted. The failure to cross-examine Dr Gad on the issue raised the spectre of a failure by the Tribunal to accord the appellant procedural fairness.
8. The Tribunal did not breach s 37 of the Act. It was entitled, and bound, to consider all of the particulars of the complaint which had been established when it came to consider penalty.
9. The Tribunal gave sufficient reasons when it rejected the evidence of Zeinab Mustapha and there was no failure to comply with the requirement of s 165(2) of the Act.
10. The appellant’s conduct was reprehensible. Notwithstanding the court’s findings regarding falsification of records, the determination of the Tribunal on 19 October 2001 should be confirmed.
1) The appeal be dismissed with costs.Orders:
CA 40899/01
MT 40035/99
Wednesday, 24 April 2002MEAGHER JA
SHELLER JA
STEIN JA
Judgment
1 MEAGHER JA: I agree with Stein JA.
2 SHELLER JA: I agree with Stein JA.
3 STEIN JA:
- Introduction
4 This is an appeal by Dr Monier Gad against a decision made by the Medical Tribunal of New South Wales on 19 October 2001 ordering that the appellant’s name be removed from the Register of Medical Practitioners and that he not be permitted to seek to be restored for a period of three (3) years.
5 The Tribunal found a number of complaints against the doctor proven, some amounting to professional misconduct and others to unsatisfactory professional conduct (ss 36 and 37 of the Medical Practice Act 1992, the Act).
6 An amended Notice of Appeal raises 16 grounds, of which 15 are pressed. However, a number of them overlap and may conveniently be grouped together.
The complaint:
7 The Particulars of the complaint are as follows:
1. In April and May 1998, the practitioner inappropriately treated Patient A in that he:
i Did not properly investigate the presenting problem of patient A.
ii Inappropriately administered testosterone injections to patient A.
iii Inappropriately supplied Andriol capsules to patient A.
iv Following treatment with testosterone, did not recognise patient A’s symptoms as side effects of testosterone treatment.
2. In April 1998 he failed to obtain informed consent for his proposed treatment of Patient A in that the practitioner:
i Did not discuss and explain the side effects of his proposed testosterone treatment with patient A.
ii Did not inform patient A of the identity of the substance administered by injection.
3. In April and May 1998, the practitioner:
i Did not keep proper or adequate medical records for patient A.
ii Did not keep adequate records in relation to the supply of a restricted substance, in contravention of clauses 40 and 59 of the Poisons and Therapeutic Goods Regulation 1994.
4. On 17 April 1998, the practitioner profited from the sale of medication to patient A, in contravention of section 28(2)(a) of the Pharmacy Act 1964.
5. The practitioner did not properly label the container of Andriol capsules, in contravention of clause 27 of the Poisons and Therapeutic Goods Regulation 1994.
Facts found by Tribunal
8 The Tribunal found that the appellant first saw patient A in his surgery on 16 April 1998. At that time she was a 16 years and 9 month old school girl studying for her HSC. She lived at home with her parents and siblings. A was concerned about being underweight. Her friend, Fatina Mustafa, worked as a part-time receptionist for the appellant. Fatina suggested that she attend the appellant’s surgery. A attended the appellant together with Fatina. She asked if he could help her put on weight. The appellant told her that he could help with a course of six injections and some tablets. He told her that the cost would be $325, comprising $95 for the tablets and $230 for the injections. The appellant asked for cash so he could order the medications. The girl’s parents agreed and her father withdrew cash from his bank in order to pay the appellant. The following week, on 22 April 1998, the girl attended for her first injection. According to the complainant $325 was paid over to the appellant in the presence of Zeinab Mustapha, Fatina’s mother. The appellant did not tell the complainant what the injection contained. He also gave her a container of capsules with instructions to take one each day. He did not tell her what the tablets were, nor did he give her any information as to the possible side effects. Apart from weighing the patient on each visit, the appellant did not examine her or take any history.
9 On her next attendance on 29 April 1998, A had her brother with her. He asked the appellant about the nature of the injections. The appellant was reluctant to provide information but ultimately said that they were vitamin injections. The patient had her second injection.
10 When A had her third injection on 6 May 1998, her father (the original complainant to the Health Care Complaints Commission (the HCCC)) attended the surgery. He asked the appellant for a receipt for the cash payment of $325.00.
11 Eventually the appellant produced a receipt entitled ‘invoice’. The receipt was not in an official receipt book and did not contain any details of the practitioner or his provider number, although the appellant had a machine numbered official receipt book at the surgery.
12 The patient received three further injections from the appellant on the 14, 20 and 27 May 1998. By 20 May the patient had developed a skin rash on her arms and legs and the appellant gave her Celestone to treat it. On 27 May she complained to the appellant about a sore throat and he gave her Rulide, an antibiotic. The Tribunal found that the appellant did not recognise the patient’s symptoms as a virilizing process, or he chose to ignore them providing no remediating medication. The appellant merely continued administering the injections.
13 Before receiving the first injection, the girl had never shown any indication of a virilizing process. Over the 6 week course of the injections and taking the tablets daily, A developed increased hair on her body, face and limbs, a deepening of her voice, cystic acne and disruption to her menstrual cycle.
14 On 10 June 1998 A went with her mother to see Dr George complaining of the above symptoms. She produced the container of tablets given to her by the appellant. They were found to be 40 mg Andriol capsules, a testosterone undecanoate preparation. A had taken approximately 38 of them. Dr George examined the patient and confirmed the symptoms of which she complained. Subsequently, pathology tests revealed that she had a testosterone reading of 7.8 nmol/L. The normal range is 0.5 to 2.6 nmo1/L. Expert evidence before the Tribunal was to the effect that the most likely explanation for this grossly elevated level was the administration of substantial quantities of exogenous testosterone.
15 There was also evidence that at the relevant time, indeed the day after he was paid in cash, the appellant ordered Andriol and Sustanon, a testosterone preparation in 250 mg doses.
16 Medical opinion was that the patient’s high, indeed markedly abnormal testosterone reading, was due to a persisting effect of testosterone injections given at weekly intervals. The virilization symptoms exhibited by the patient were the kind of side effects to be anticipated after taking daily Andriol tablets and receiving weekly Sustanon injections.
Tribunal findings against appellant
17 The Tribunal found that the appellant had administered testosterone injections to the patient over a six-week period and also supplied her with a container of Andriol tablets which he told her to take daily. It found that the treatment was inappropriate and that the appellant did not carry out any clinical investigation other than to weigh the girl. Further, that the appellant failed to recognise A’s symptoms of the virilizing process as being side effects of his inappropriate treatment.
18 The Tribunal also found that the doctor failed to obtain the consent of the patient to the treatment and failed to inform her of the nature and side effects of the treatment. Further, he misled her as to the true nature of the substance which he administered to her.
19 In addition, the Tribunal found that the practitioner failed to keep proper or adequate medical records with respect to the patient; contravened the Poisons and Therapeutic Goods Regulation 1994; profited from the sale of the medication in breach of the Pharmacy Act 1964 and did not properly label the Andriol tablets.
20 In rejecting the case put by the appellant, which was a denial of the complainant’s case and an allegation that he injected the appellant with a multi-vitamin, the Tribunal said that it did not accept his evidence where it conflicted with that of the patient and her family. Moreover, the Tribunal rejected the evidence of witnesses called in the appellant’s case. In particular, it rejected the evidence of four witnesses who alleged that the patient’s brother sold testosterone products, and, when he was not at home, the patient and her mother did this. The Tribunal said that it could not recall ‘witnesses so totally unacquainted with their obligation to tell the truth’. It said that on any rational analysis, each of the four men were prepared to give blatantly false evidence. They were entirely lacking in credibility. When handing down its final orders the Tribunal added an addendum to the effect that it was deeply disturbed by their evidence. It ordered that the statements of the four witnesses and a transcript of the evidence be forwarded to the Director of Public Prosecutions for investigation.
Grounds of Appeal
21 I turn to consider the various grounds of appeal argued before the court.
Ground 1: Preference in medical opinion
22 This ground maintains that the Tribunal capriciously preferred the opinion of Professor Eden over Dr Tynan. There is nothing in this ground. Indeed, there was not very much difference between the opinions of the two experts. Where they diverged the Tribunal indicated that it preferred the evidence of Professor Eden. The Tribunal accurately summed up the medical evidence and the debate between the experts. It gave sufficient reasons for its preference for Professor Eden. The Medical Tribunal is an expert one and had the advantage of seeing and hearing the evidence of the practitioners and assessing what respective weight ought be given to their opinions. This ground of appeal is lacking in merit.
Grounds 2 and 3: The patient’s absence of pain
23 The patient did not complain of any pain upon the administration of the injections by the appellant. Dr Tynan considered that the injections of testosterone would be likely to be painful. Of this the Tribunal said:
- Some emphasis was placed on Patient A’s evidence that she did not recollect suffering any pain at the time she received these injections into her upper arm, although both experts, particularly Dr. Tynan, were of the opinion that a noticeable level of pain would be felt. Having carefully considered the evidence on this topic, the Tribunal is not persuaded that the patient’s response reflects adversely on her credibility.
24 The appellant’s complaint is that the issue of pain went to the likelihood of the injection being testosterone and therefore supported his case that it was a vitamin injection which he administered to the patient.
25 For my part, I do not see that the patient’s evidence of feeling no pain upon receiving the injection is of any great significance. It could be explained by stoicism or by the patient being a person who was not particularly reactive. The experience of pain is a very subjective matter. By the time of the hearing before the Tribunal the patient was looking back three years. The Tribunal was entitled to find, and this is not disputed, that her answer that she did not experience pain was an honest one and did not affect her credibility. Moreover, it is difficult to see how her answer could seriously have been said to affect the Tribunal’s determination of the principal issue of whether the appellant administered testosterone injections to her. Once the Tribunal had accepted the complainant and her family’s evidence, and rejected the appellant’s and his witnesses, the inference to be drawn was overwhelming. A’s experience of pain or no pain was a mere straw in the wind which could not affect the ultimate finding on the central issue before the Tribunal.
Grounds 4 and 5: The evidence of Zeinab Mustapha
26 The appellant submits that the Tribunal capriciously and without giving proper reasons rejected the evidence of Zeinab Mustapha. Essentially she denied that the complainant, or anyone on her behalf, paid the appellant $325 in her presence or that the appellant issued a receipt. The Tribunal said that it did not accept the evidence of Zeinab Mustapha where it conflicted with that of the patient and her family. This finding followed closely on the Tribunal’s rejection of the appellant’s version of events. Zeinab’s evidence was within a fairly narrow compass, particularly concerning the payment of $325 to the appellant. The evidence of the payment on the complainant’s side was very persuasive. By contrast, Zeinab’s evidence on the issue was confused, implausible and at times contradictory.
27 The Tribunal was entitled to reject the evidence of Zeinab when she said that no payment of $325 was made. The Tribunal did not need to refer to all of the evidence led or to indicate which evidence it accepted or rejected. As Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 728, the duty to give reasons depends upon the circumstances of the individual case. The Tribunal gave sufficient reasons. It did not act capriciously in rejecting Zeinab’s evidence on the payment.
- Ground 7: The evidence of Mr Hanna
28 In considering the appellant’s explanation about the disputed receipt, the Tribunal said that it rejected his at times contradictory evidence about the purchase of a nebuliser on 12 February 1998 from Mr Hanna, a pharmacist in the same building as the appellant. The Tribunal rejected the appellant’s evidence that the complainant’s mother asked him to provide a nebuliser. The Tribunal preferred the mother’s evidence that no such conversation took place. It was in this context that the Tribunal said:
- There are a number of inconsistencies and contradictions in the evidence of both the practitioner and Mr. Hanna concerning this matter. Whilst the Tribunal accepts it is possible that both the practitioner and Mr. Hanna were victims of unfortunate flooding incidents at or about the same time, the practitioner’s occurring in his surgery adjacent to Mr. Hanna’s pharmacy, whilst Mr. Hanna’s occurred in the garage of his home, the Tribunal does not accept that documents capable of supporting their versions of this transaction were thereby destroyed. The Tribunal is, however, satisfied that if the practitioner did purchase a nebuliser from Mr. Hanna, there was no discussion between himself and the patient’s mother relating to this item. Nor does the Tribunal accept that the practitioner carried around in his wallet for a period of approximately three years, the receipt with which he says he was provided by Mr. Hanna as evidence of this transaction.
29 It is not clear from this statement that the Tribunal rejected Mr Hanna’s evidence, although it is apparent that it had some doubts about it. To this extent the ground of appeal, which claims that the Tribunal erred in rejecting Mr Hanna’s evidence, must be rejected. However, what is evident is that even if the Tribunal accepted the evidence of Mr Hanna that the appellant purchased a nebuliser from him on 12 February 1998 for $450, this did not necessarily assist the appellant’s case.
30 The appellant’s evidence about the disputed receipt of 6 May 1998 for $325 was open to rejection by the Tribunal on a number of substantial grounds quite unrelated to Mr Hanna’s limited evidence. For example, the appellant’s first response to the production of the receipt by the respondent was to deny it was his receipt. It was only upon being confronted with the opinion of handwriting experts that it was his document that the appellant acknowledged it was his document. He then moved to explain the document by reference to the nebuliser purchase for the complainant’s mother obtained, he claimed, from Mr Hanna earlier in 1998.
31 Thus, even if Mr Hanna’s evidence was given full weight, its assistance to the appellant would have been minimal. It would not have affected the Tribunal’s findings about the appellant’s conduct concerning the disputed receipt, findings which were patently open to the Tribunal.
- Grounds 8 – 10: The circumstantial case
32 These group of grounds take issue with the way the Tribunal approached the complainant’s ‘circumstantial case’. Particular criticism was made of the Tribunal’s finding that the only plausible explanation for the clinical findings of the patient’s elevated testosterone was that the appellant had injected it into the girl over six weeks. This was claimed to be an error in relation to the legal burden of proof.
33 The submission made on behalf of the appellant on these grounds is premised on the basis of the need for the respondent to prove that the appellant actually supplied patient A with Andriol and injected her with Sustanon 250mg doses. It is contended that in finding that the appellant administered the treatment, the Tribunal must have misapplied the Briginshaw standard.
34 In particular, the appellant is critical of the following finding of the Tribunal:
- The Tribunal is further comfortably satisfied that the only plausible explanation for the clinical findings and the elevated testosterone, is that the practitioner administered testosterone by injection during the six-week period of treatment.
35 It is suggested that the Tribunal’s reasoning discloses a process more akin to one of elimination, thus depriving the practitioner of the benefit of the Briginshaw standard.
36 However, a fair reading of the Tribunal’s decision makes it plain that it did not misdirect itself as to what needed to be established, see for example what it said at Red AB 91 O to U.
37 The case against Dr Gad may have been in essence a circumstantial one, however, it must be said that it was a very strong one. The complainant did not have access to testosterone. She quite clearly had been injected with it. A formidable array of evidence pointed to Dr Gad as the person who so injected her. On the evidence, it would not be difficult to also conclude that he supplied the girl with Andriol capsules. They were findings which were clearly open to be made on the Briginshaw standard, if not, in my view, beyond reasonable doubt.
38 The evidence of virilizing signs developing in the patient also provides corroboration of the case against Dr Gad.
39 It is also quite clear that the preparation was identified as testosterone. The medical evidence on this is beyond reasonable argument.
40 I can see no error in the Tribunal’s approach. It was perfectly open to the Tribunal to conclude that there was no other explanation for the clinical findings and that the only plausible explanation was that the appellant had administered testosterone to the patient. This involved no breach of the Briginshaw standard. No reversal of the onus of proof or error in relation to the burden of proof is apparent.
- Grounds 11 – 13: The patient’s records
41 These grounds were added in a supplementary notice of grounds of appeal. They provide as follows:
12. The Tribunal denied the appellant procedural fairness in finding in its decision of 19 October 2001 that the Appellant had falsified the patient’s records.11. The Tribunal erred in making a finding in its decision of 19 October 2001 that the Appellant had falsified the patient’s records when no such allegation was made against him in the Complaint.
- 13. The Tribunal did not have regard to the Particulars of Complaint in finding in its decision of 19 October 2001 that the Appellant had falsified the patient’s records.
42 It must be kept steadily in mind that the appellant admitted Particular 3(i) in the complaint. Thus he admitted that he did not keep proper or adequate medical records for patient A. The Tribunal so found, as it was entitled.
43 However, in its second decision, the Tribunal found that the appellant had falsified his records with the intention of misleading anyone who might read them into the erroneous belief that he injected Intravite. The Tribunal said that this was a ‘deliberate falsification of his records’.
44 There never was a Particular of complaint alleging falsification of the records by the appellant. On behalf of the appellant it is submitted that the Tribunal failed to accord him with procedural fairness. It was necessary to bring home to the appellant that it was the respondent’s case that his records were not simply inadequate, but falsified so as to mislead.
45 There is substance in the submission since there was no explicit allegation particularised of deliberate falsification by the appellant of his records in order to deceive. Further, it is conceded that there was no direct cross-examination of the appellant to this effect.
46 In a way I can understand how the circumstance arose. The particular complaint was admitted, unlike all of the others. The evidence therefore concentrated on the disputed complaints. At the end of the day the Tribunal was clearly of the opinion that the evidence in relation to the records was such as to entitle it to make the finding of deliberate falsification.
47 This was probably the case but in so finding the Tribunal overstepped the mark because such a charge had never been particularised, nor admitted. The failure to cross-examine Dr Gad about it also raises the spectre of a failure to accord procedural fairness.
48 These grounds of appeal should therefore be upheld. The question remains as to what effect a proper finding of a breach of Particular 3(i), as particularised and admitted by the appellant, would have made. The answer is that a finding of unsatisfactory professional conduct would have been made rather than one of professional misconduct, as found by the Tribunal. That is, the lesser offence under s 36 would have been found, rather than the more serious one under the definition in s 37 of the Act.
49 Nonetheless, the parties are in agreement that if error be found in relation to these grounds, the court should not remit the matter to the Tribunal, but, as it were, proceed to re-sentence the appellant. This approach is in accordance with Bannister v Walton (1993) 30 NSWLR 699 at 731.
50 I will return to this aspect later in conjunction with a consideration of Ground 6 regarding the penalty imposed by the Tribunal.
- Ground 14: Totality of conduct of appellant
51 This ground of appeal provides:
14. The Tribunal erred in relation to s37 of the Medical Practice Act by finding that the totality of the practitioner’s conduct in relation to his treatment of Patient A constituted Professional Misconduct.
52 However, the ground misstates what occurred. In its second determination on 19 October 2001 the Tribunal made separate findings in relation to each complaint which it had found to be established. In relation to some matters it found the conduct to be professional misconduct. In relation to others, eg Particular 3(i), Particular 4 and Particular 5, it found that the conduct constituted unsatisfactory professional conduct.
53 The Tribunal then turned to consider the appropriate sanction to be applied.
54 In doing so, it said:
The Tribunal considers that the totality of the practitioner’s conduct in relation to his treatment of Patient A constitutes Professional Misconduct.The conduct of the practitioner went well beyond mere professional incompetence or deficiencies in the practice of medicine. It involved a deliberate departure from accepted standards of practice, which put the patient at risk of suffering harm. That conduct was exacerbated by the practitioner profiting from the sale of the very medication which harmed the patient.
55 I do not understand that this statement breaches s 37 of the Act. The Tribunal was entitled, indeed bound, to consider all of the particulars of the complaint which had been established when it came to consider penalty. I do not accept that the statement complained about meant more than when all of the practitioner’s conduct, found to be established, is considered, it could properly be described as ‘professional misconduct’. But even if this reference was a slip by the Tribunal, it is plain that the Tribunal had carried out the individual and separate exercise in relation to each Particular in the complaint before it moved to consider other matters relevant to penalty, such as prior disciplinary action against the appellant and his character. There is no doubt that in arriving at the ultimate sanction to be imposed, the whole of the appellant’s conduct is relevant to be considered. Counsel for the appellant so concedes.
- Ground 16: Insufficient reasons
56 While this ground is at large in the notice of grounds of appeal, the appellant’s submission makes it plain that it is directed solely to the rejection of the evidence of Zeinab Mustapha. It is therefore to be read in conjunction with grounds 4 and 5 dealt with earlier in these reasons. For the reasons therein given, the Tribunal’s rejection of the witness was open. The Tribunal gave sufficient reasons and there was no failure to comply with the requirements of s 165(2) of the Act.
- Ground 6: Inappropriate penalty
57 It is the submission on behalf of the appellant that the Tribunal should have considered the imposition of a fine or suspension rather than the order made removing the appellant’s name from the Register. This, so it is claimed, constituted an error in the exercise of the Tribunal’s discretion. Because of my conclusion regarding grounds 11 to 13, it is unnecessary to address the claim that the Tribunal’s discretion miscarried, although it clearly did not.
58 As I mentioned before, the Tribunal’s failure to accord procedural fairness in relation to Particular 3(i) leads to the conclusion that a finding of professional misconduct was inappropriate for that aspect of the complaint. Rather, in view of the admission of the charge, a finding of unsatisfactory professional conduct ought to be substituted.
59 What implication does this have for the consideration of the appropriate ultimate sanction to be imposed on the appellant? In my view, virtually none.
60 The Tribunal found, in relation to Particular 1(i) to (iv) inclusive, that the conduct of the appellant with regard to patient A:
- … demonstrates such a lack of adequate knowledge, skill, judgement and care by the practitioner in the practice of medicine as to constitute unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of the practitioner’s right to practice medicine, or his removal from the register of practitioners.
61 In relation to Particular 2(i) and (ii), the Tribunal found that the appellant’s failure to obtain the informed consent of A and failing to advise of the side effects of the medication was of such a serious nature as to constitute professional misconduct under s 37. Further, that the appellant’s conduct was exacerbated by his failure to truthfully answer inquiries from the patient’s family. The Tribunal said that the conduct attracted severe criticism from the appellant’s peers.
62 The Tribunal also found that the appellant’s conduct constituted unsatisfactory professional conduct regarding Particulars 3(ii), 4 and 5.
63 Bearing in mind the appellant’s past disciplinary record, in part relating to the prescription of anabolic steroids and breach of undertakings to the Department of Health, as well as the appellant’s conduct at the Tribunal proceedings, there was in my opinion only one appropriate penalty. That is the removal of the appellant’s name from the Register.
64 It is true that the conduct related to only one patient over a 6-week period of treatment. This was acknowledged by the Tribunal. Nonetheless, it is my firm view that the appellant’s conduct, as found to be established, sans Particular 3(i), was reprehensible. The patient was a teenage girl studying for her HSC. Her ‘treatment’ was staggeringly inappropriate and has left her with a permanently deepened voice. How any medical practitioner could really believe that a course of testosterone injections could increase the patient’s weight beggars belief.
65 Bearing in mind the Tribunal’s responsibility to the public and the nature of the proven complaints, it would be wholly inappropriate to impose any of the sanctions referred to in sections 61 or 62 or suspension under s 64 of the Act. Given the nature of the findings of professional misconduct by the appellant, deregistration is the only appropriate penalty to impose. Accordingly, the determination of the Tribunal on 19 October 2001 that the appellant’s name be removed from the Register of Medical Practitioners and that he not be permitted to seek to be restored for a period of 3 years should be confirmed.
66 The appeal should be dismissed with costs.
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