HCCC v Dr Gow (Suppression order)

[2008] NSWMT 3

New South Wales

Medical Tribunal

CITATION:	HCCC v Dr Gow (Suppression order) [2008] NSWMT 3
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Arthur Garry Gow
FILE NUMBER(S):	40011 of 2007
CORAM:	Ainslie-Wallace, DCJ
CATCHWORDS:	Suppression order - Consideration of effect on doctors health
LEGISLATION CITED:
CASES CITED:	Clyne v NSW Bar Association (1960) 104 CLR 186
DATES OF HEARING:	16.10.2008
DATE OF JUDGMENT:	21 October 2008
LEGAL REPRESENTATIVES:	P Strickland SC instructed by Health Care Complaints Commission A Katzmann SC instructed by HWL Ebsworth Lawyers
ORDERS:	I decline to continue the order suppressing the respondent's name.

JUDGMENT:

THE MEDICAL TRIBUNAL Tuesday 21st October 2008

OF NEW SOUTH WALES

AT SYDNEY

No. 40011 of 2007

BETWEEN

Health Care Complaints Commission

Applicant

Dr Arthur Garry GOW

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr Saw-Hooi Toh

Dr Susan Messner

Mr David Jackett

Judgment on Suppression Order

1 The applicant brought a complaint against the respondent alleging that he was guilty of unsatisfactory professional conduct and/or professional misconduct by reason of his treatment of a patient.

2 That complaint has been heard and the Tribunal determined that the respondent was guilty of professional misconduct.

3 These reasons should be read in conjunction with the judgment in the substantive matter.

4 There was no dispute between the parties that if the respondent was found to be guilty of professional misconduct, the Tribunal should not order that he be de-registered or suspended from practice. The orders of the Tribunal and the reasons for its determination will be published at the same time as this judgment.

5 At the commencement of the hearing, on the application of the respondent, the Tribunal made an order suppressing the name of the respondent and his wife or any information that identified the respondent or his wife or that tended to identify the respondent or his wife.

6 The issue for determination is whether the suppression order should continue.

Background

7 The circumstances in which the applicant brought the complaint were relevant to the making of the suppression order. On 22nd September 2004, when treating the patient for back pain, the respondent prescribed 5 ampoules of 120mg/1.5ml Morphine Tartrate for the patient. On 2nd October 2004 the patient injected himself with the contents of one ampoule and, as a result, died of a morphine overdose. The respondent had intended to prescribe 15 mg morphine sulphate for the patient. He was unable to explain why he had instead prescribed morphine tartrate which is a form of morphine used with patients in the terminal stages of cancer.

8 The respondent readily conceded during the hearing that it was inappropriate to prescribe morphine tartrate with which the patient would inject himself, that it was inappropriate for him to write a prescription for the patient without any instruction to the patient about the amount to be taken and the period of time in which the drug was to be used.

9 As a result of the patient's death, the respondent was charged with manslaughter and stood trial in August 2006. During the trial the respondent pleaded guilty and was convicted on 27th October 2006. He was sentenced to imprisonment of 18 months with a non-parole period of 12 months. The whole of the sentence was suspended.

10 Perhaps as to be expected, there was considerable publicity attending the trial. The respondent lives in the Illawarra area and the local newspapers gave extensive coverage to the trial including publishing photographs of him.

11 It was argued for the respondent that to lift the suppression order would have an adverse impact on his health.

12 In April 2007 after a period of illness, the respondent was diagnosed with Multiple Myeloma, a progressive disease of the blood and bone marrow. It has a poor prognosis. After a period of intensive treatment, the respondent's condition remitted in October 2007. In July 2008 the respondent learned that he had relapsed. He is presently receiving treatment but it not known whether this will lead to a further remission. His specialist haematologist, Professor Cartwright believes that a relapse so soon after that intensive treatment does not bode well for him. In a report to the Tribunal of the 14th October, Professor Cartwright said:

"Although it is difficult to estimate any patient's likely survival, given his poor prognosis, I have estimated (the respondent's) survival at between three and twenty four months, depending on response to therapy."

13 At the time of the respondent's treatment of the patient, he was suffering from an undiagnosed, unrecognised and untreated major depressive disorder. He has been treated by Dr Michael Diamond since September 2006. Dr Diamond said that at that time he first saw the respondent, he was in a state of severe depression with accompanying melancholia. He said that the respondent also suffers from a longstanding social anxiety disorder which has reflected in a propensity for him to avoid situations in which he will be the centre of attention.

14 Since being treated by Dr Diamond, the respondent's condition has improved although Dr Diamond said he remained depressed. However, Dr Diamond said that the respondent remains vulnerable to a further period of severe depression.

15 In support of the application for the interim suppression order, the respondent tendered a report by Dr Diamond addressing the respondent's reaction to the anticipated publicity that would attend the Tribunal hearing. Dr Diamond said:

"I believe that the extra stress of being under public scrutiny will impact psychologically in a detrimental way upon (the respondent). The magnitude of this psychological blow is significant."

16 Professor Cartwright expressed concern that public scrutiny and media interest in the outcome of the Tribunal hearing will have a negative impact on the respondent's mental state, physical well being and his immune response. She said:

"Public scrutiny would pose a significant psychological blow to him, detrimentally affecting his active depression and long standing social anxiety disorder. Deterioration in his mental well being may lead to difficulty with nutrition and hydration which are critical for maintenance of health in patients with underlying multiple myeloma."

17 She said that any disruption to his immune response that might flow as a consequence of psychological stress may lead to severe and potentially fatal infection.

18 In coming to a determination of the complaints, the Tribunal found that the respondent's conduct was isolated in his practice and that the conduct was not as a result of indifference nor was it calculated. Although the respondent is not presently practising and has no immediate intention to do so, the Tribunal was satisfied that should he do so there is no prospect that he would act in that way again. The Tribunal also found that up until September 2004 the respondent had practised medicine in an unblemished way, earning the respect and admiration of his colleagues and patients.

19 Senior counsel for the respondent argued that in the particular circumstances of this case, there is no point served in lifting the suppression. The respondent is not working and has no present intention to work as a doctor and, given the findings of the Tribunal there is no prospect that he would repeat the conduct that drove the complaints, there is no protective function to be served.

20 The applicant argued that the protective nature of proceedings before the Medical Tribunal require making the decisions and orders of the Tribunal public. It was argued that there is a right in the public to know that the respondent had been the subject of the complaint and to know the outcome. Certain conditions will apply to the respondent's continued practice and members of the public who may approach the respondent for treatment have a right to know and make an informed decision about whether to engage him for treatment.

21 It is well established that the function of the Medical Tribunal is a protective one and that it does not, by its orders, punish the practitioner. The findings and consequential orders are " for the protection of those who require protection " ( Clyne v NSW Bar Association (1960) 104 CLR 186). It is inherent in the protection of the public that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Act or should a patient which to make a complaint. The Medical Tribunal also upholds the standards and reputation of the profession in ensuring that the public retains confidence in the medical profession.

22 It is deeply regrettable that the respondent has developed a life threatening illness and, on any account, has but a brief period to live. The Tribunal accepts that an order that his name is published with the judgment will probably bring unwanted and distressing public scrutiny to the respondent. That may have an adverse impact on his health and treatment regime.

23 However, the Tribunal is of the view that it would be inconsistent with the protective function of the Tribunal proceedings to make an order that suppresses the name of the respondent when publishing the reasons for determination and in making the orders that flow from that determination. The interim suppression order will not be continued on publication of the reasons for determination of the Tribunal.