HCCC v Dr Wong
[2010] NSWMT 4
•1 April 2010
New South Wales
Medical Tribunal
CITATION: HCCC v Dr Wong [2010] NSWMT 4 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Kelvin WongFILE NUMBER(S): 40018 of 2009 CORAM: Ainslie-Wallace, DCJ - Kok, Dr E - Kertesz, Dr E - Gray, Ms A CATCHWORDS: Removal from Register - Conduct reprehensible - Conduct amounting to complete abrogation of responsibility - Prescribing on demand - Prescribing without knowledge - Prescribing outside clinical setting - Self-prescription of benzodiazapines - Failure to advise the Medical Board of criminal convictions LEGISLATION CITED: Medical Practice Act 1992 ss 36, 37 & 127B
Medical Practice Regulations 1998 (repealed)
Medical Practice Regulations 2003 (repealed)
Poisons and Therapeutic Goods Act 1966CASES CITED: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
Law Society of NSW v Foreman (1994) 34 NSWLR 408;
Craig v Medical Board of SA [2001] SASC 169;
NSW Bar Association v Meakes [2006] NSWCA 340;
Prakash v Health Care Complaints Commission [2006] NSWCA 153DATES OF HEARING: 15.3.2010 to 16.3.2010 DATE OF JUDGMENT: 1 April 2010 LEGAL REPRESENTATIVES: G Farmer of Cousel
R Lewis Solicitor - Health Care Complaints Commission
S Barnes of Cousel
A Davey Solicitor - Unsworth LegalORDERS: 1 The Tribunal orders that the name of the respondent be removed from the Register of Medical Practitioners; 2 The repondent not to apply for re-registration until a period of 18 months has elapsed; 3 The respondent pay the applicant's costs of the hearing
JUDGMENT:
THE MEDICAL TRIBUNAL Thursday 1st April 2010
OF NEW SOUTH WALES
AT SYDNEY
- No. 40018 of 2009
BETWEEN
Health Care Complaints Commission
Applicant
Dr Kelvin WONG
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Dr Emery Kertesz
Dr Esther Kok
Ms Annette Gray
Order:
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the names of the patients referred to in the proceedings.
Introduction
1. The Health Care Complaints Commission (the ' complainant ') alleges that the respondent has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Medical Practice Act 1992 (the ' Act ') and/or professional misconduct within the meaning of section 37 of the Act in a number of respects.
2. The complaint alleges that the respondent has demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience and/or engaged in improper or unethical conduct relating to the practice or purported practice of medicine and/or contravened the Medical Practice Regulation 1998 (repealed) and/or contravened the Medical Practice Regulation 2003 (repealed) and/or contravened section 127B of the Medical Practice Act 1992.
3. The particulars of the complaint relate to the respondent's prescribing of benzodiazepines (particular 1), androgenic anabolic steroids (particulars 2 and 3), HCG/Pregnyl (particulars 4 and 5), Rivotril and ephedrine hydrochloride (particular 6) Ketamine (particular 7) in quantities and for purposes not in accordance with recognised therapeutic standards of what was appropriate, without including proper medical directions on the prescriptions contrary to the Poisons and Therapeutic Goods Act .
4. It is also alleged that the respondent prescribed benzodiazepines for himself in quantities and for a purpose not in accordance with recognised therapeutic standards of what is appropriate in the circumstances (particulars 8 and 9).
5. It is alleged that the practitioner issued a prescription for Normison to a patient knowing that the drug was intended for another person's use where the practitioner had not met or examined the person for whom the drug was intended (particular 10).
6. Particular 11 alleges that the practitioner prescribed anabolic androgenic steroids, HCG/Pregnyl, ephedrine and benzodiazepines in circumstances where he admits that he did not have sufficient knowledge about the drugs to prescribe them.
7. It is alleged that he issued a prescription for Alprazolam while under the influence of either drugs or alcohol (particular 12).
8. Failed to maintain adequate records (particulars 13 and 14).
9. Failed to notify the Medical Board (the ' Board ') within 7 days of being convicted on 22nd March 2006 of driving with a mid-range concentration of alcohol and driving while disqualified (particular 15); failed to notify the Board within 7 days of being convicted on 21st September 2006 of driving while disqualified (particular 16) and failed to notify the board within seven days of being convicted on 4th December 2006 of three counts of possessing a prohibited weapon (particular 17).
10. The respondent admits each particular of the complaint and concedes that his conduct amounts to professional misconduct.
11. The particulars about the respondent's prescribing concerns 16 patients. The particulars about his record-keeping relates to 55 patients.
Background
12. The respondent graduated MB BS from the University of NSW in 1995. Between 1995 and mid-1997 he was employed at Canberra Hospital as an intern and resident medical officer. He then took 6 months off for travel overseas. From 1998 until 1999 he worked as a general practitioner in a medical practice in West Ryde. In 2000 he began to work at the Pitt Street Medical Practice. He continues to work there. The practice operates as a bulk billing practice and uses an appointment system.
13. In early 2006 the respondent's prescribing came to the attention of the Pharmaceutical Services Branch of the Department of Health (the ' PSB ').
14. In January and February 2006 several pharmacists contacted the PSB and expressed concerns that the respondent was issuing prescriptions for steroids. On 27th February an officer of the PSB rang the respondent and discussed the prescriptions he had written, both as to the drugs prescribed and the quantities. The respondent admitted to the officer of the PSB that he had issued the prescriptions, agreed that he had " done the wrong thing " and assured him that he would not do so again.
15. The PSB received a further complaint from a pharmacist about the respondent issuing prescriptions for steroids in May 2006.
16. In June 2006 a pharmacist notified the PSB that a patient of the respondent (Patient C) had presented five prescriptions for large quantities of anabolic androgenic steroids and for ephedrine. The pharmacist, on receiving the prescriptions, rang the respondent who told him that if was not happy to fill the prescriptions, to hand them back to the patient who would take them somewhere else. A matter of days later, the PSB received another complaint in similar terms from a pharmacist who was presented with a prescription written by the respondent for a very large quantity of steroids.
17. In July the PSB was notified that police had been called to the respondent's professional address one evening on suspicion of a break-in to find a man, a patient of the respondent, in possession of two prescriptions for steroids; one in his name and one in the name of another person. The respondent told police that he had written the prescriptions, that he knew it was unethical and that it was because the man was a body builder who " wanted to get a bit bigger ". He said he only prescribed steroids for one or two patients.
18. 18 Complaints continued to be made to the PSB about the respondent's prescribing.
19. 19 The respondent was interviewed by the PSB about his prescribing in October 2006. At the conclusion of the interview, the respondent surrendered his authority to prescribe Schedule 4D and Schedule 8 drugs.
20. 20 On 14th December 2006 the Board convened an inquiry pursuant to Section 66 of the Act . At the conclusion of the inquiry the respondent was suspended from practising medicine. The delegates found the respondent's clinical judgment to be significantly flawed.
21. After the Section 66 Inquiry the respondent attended a psychiatrist nominated by the Board, Dr Murray Wright. Dr Wright saw him a number of times and made reports on his contact with the respondent.
22. In April 2008 the Section 66 Inquiry was re-convened to consider whether the respondent should be permitted to return to practice. On 1st May 2008 the Board determined that the suspension should be lifted and the respondent was permitted to return to practice subject to a significant number of conditions.
23. On 2nd April 2009 the applicant brought the present complaint against the respondent.
Prescribing
Androgenic anabolic steroids, HCG/Pregnyl
24. The respondent prescribed these drugs to 15 patients. (1)
25. In respect of each patient the respondent admitted that there was no clinical indication for the prescription and that the purpose for prescribing and the quantities of the drugs prescribed was not appropriate.
26. Dr Jeremy Bunker provided two reports commenting on the respondent's prescribing practices. His opinions were unchallenged. He said that the only indication for prescription of androgenic anabolic steroids is confirmed androgen deficiency, palliation of some breast cancers, chronic renal failure and bone marrow stimulation in cases of aplastic anaemia. There is nothing new in these indications for use and Dr Bunker said that they have been widely discussed in the medical community for the last ten years. In none of the patients to whom the respondent prescribed the drugs was there a clinical indication to justify prescription. Dr Bunker further said that there is widespread awareness among general practitioners that steroids are sought after by body builders and abused.
27. Human Chorionic Gonadatrophin ( HCG ) or Pregnyl is indicated for inducing ovulation in females in assisted reproduction or in males for the treatment of hypogonadism from an under functioning pituitary gland. Dr Bunker said that all uses of this medication are highly specialised and are always initiated by specialists and only after investigation confirming specific, measurable hormone deficiencies.(2) The respondent arranged no tests for any patient for whom he prescribed HCG. The respondent did not recognise a clinical need in any patient for the prescription of these drugs. Save for one patient referred to by Dr Bunker, the respondent's note of the clinical indication for the prescription to the patients was "body building".
Benzodiazepines
28. The respondent also prescribed benzodiazepines to the same group of patients to whom he was also prescribing steroids and HCG.
29. The clinical indications for the prescription of benzodiazepines in a general practice setting are for short term management of anxiety symptoms, management of anxiety disorders, insomnia, relief of muscle spasm, to assist alcohol or opiate withdrawal and, infrequently, in the management of epilepsy. Long-term use of the drugs would be on specialist advice. Benzodiazepines are well recognised as drugs to which a patient may develop dependence. Dr Bunker said that while death from overdose of benzodiazepines alone is rare, the drug has well known risks when combined with alcohol or other opiate drugs (for example methadone) when the actions of the benzodiazepines are magnified and can lead to respiratory depression and death.
30. On analysis of the respondent's prescribing of benzodiazepines, Dr Bunker observed that he prescribed in amounts that clearly indicated high consumption by the patients unjustified by clinical indications.
31. It is useful to outline some instances of the respondent's prescribing to illustrate the complaint and to demonstrate why, in the Tribunal's view, the concession that the conduct comprised in the complaint amounts to professional misconduct, is well made.
32. The respondent first began prescribing in the way complained of in early 2001 to Patient D. While this prescribing pattern commenced in 2001, over the years the respondent's conduct escalated and became more frequent in 2005 and 2006. The Schedule of Patients is a sample of the respondent's prescribing practices and does not represent all patients to whom he prescribed.
33. Patient D. On 1st May 2001 the respondent was first consulted by Patient D. Under " history " the respondent has noted " wants injection " and prescribed and administered an injection of Primoteston. Primoteston is an androgenic anabolic steroid. It is indicated in cases of confirmed androgen deficiency. There is no suggestion in the notes that this patient had such a deficiency. The patient returned on the 16th May. The note records " needs medication " and under the heading diagnosis the respondent has noted " muscle building ". On this occasion the respondent gave the patient prescriptions for Deca-Durabolin injections, a prescription for Primobolan and for Primoteston (all androgenic anabolic steroids). The patient returned on 22nd May. " Needs Duromine " is noted and under diagnosis is " sprain - ankle, Muscle building ". The respondent prescribed Celebrex, Duromine, Primobolan and medication for an upper respiratory tract infection. On 29th May the patient again returned and the history records "needs injection" and, again the diagnosis "muscle building". The respondent prescribed parenteral Deca-Durabolin, wrote a prescription for Duromine, Nolvadex-D and Primobolan. Nolvadex-D (tamoxifen citrate) is used in the treatment of breast cancer. Duromine (phentermine) is used in weight loss and acts as a stimulant. Because of its stimulant qualities and its potential abuse, it is recommended for short-term use.(3) The respondent maintained this prescribing pattern for the patient until July 2006 when he prescribed a further two anabolic steroids and a benzodiazepine.
34. Patient E. This patient first consulted the respondent on 29th September 2005. Under history the respondent wrote " needs medication " and " insomnia, anxiety ". He prescribed Antenex, Kalma 2, Duromine and Primoteston injection. The next consultation was in October 2005 when the respondent noted " needs medication for muscle building ". On this occasion the respondent prescribed Deca-Durabolin by injection, Primoteston injection and Sustanon. Each is an androgenic anabolic steroid. Shortly afterwards, on 7th November 2005, the respondent again prescribed for the patient Primoteston by injection, Sustanon, Nolvadex and Valium in tablet form. Three days later the respondent prescribed Nolvadex, Primoteston, Sustanon, Human Chorionic Gonadotrophin (HCG) and Antenex. On the 17th November the respondent prescribed Antenex and Alepam.
35. The respondent said that sometimes he administered the injectable drugs. Mostly the patients injected themselves.
36. Patient F. First attended on 25th January 2006. The sole reason for attending was noted as being " needs medication ". At that visit the respondent prescribed Sustanon, Primoteston, Deca-Durabolin and Nolvadex. The patient returned on 6th February when the respondent noted the reason for the prescribing as " muscle building ". He prescribed Proviron, Deca-Durabolin, Primoteston and Sustanon.
Interview with the PSB
37. When the respondent was interviewed by members of the PSB in October 2006, he was asked about Patient A who came to him because he was a friend of Patient E. The respondent prescribed steroids for this patient on the first consultation. The respondent said of this consultation:
" ...he say he want to get bigger and so want some steroids to get bigger. I say, all right...I'll write for you."
38. Patient A was a body builder and the respondent wrote " muscle building " in his notes as the reason for prescribing.
39. The respondent said that he did not arrange for a test to determine the patient's testosterone levels because he knew that he was not prescribing to address any testosterone deficiency.
40. 40 The respondent was asked whether he knew the approved indication for the prescription of Sustanon and he said:
- "I think, like, you put a restriction on it. I actually don't know these things. I hardly like learn about it from medical school and I have actually write it....These guys ask for it...they all body builders and they want to get bigger...its like these are the thing we want and then...I call John (the local pharmacist) and John's like...yes you can actually write it. That's why I write it."
41. The respondent said that he was not aware of the recommended dose for Sustanon. He also prescribed Pregnyl to this patient and said that he had no idea of the indications for the drug and did not know how it worked. (4)
42. The respondent prescribed the steroids at the request of the patients in the amounts and at frequencies determined by them. At one point in the interview he said: " but they are body builders so they know about the anabolic steroid. " (5)
43. In the course of discussing his prescribing for Patient D, the respondent was asked why he prescribed Clomid. He said:
- "Clomid he told me,...he's actually educated me a lot about body building and what medicine to use. He used to... take a lot of... non-human stuff...he told me Clomid is similar to Nolvadex. He used it at the end of the cycle of body building stopping gynecomastia, that's what he told me."
44. The interviewer suggested to the respondent that the patient's appreciation of the effect of the drug was not right to which the respondent replied: "Maybe is not true ", and said that he did not know the clinical indication for prescribing Clomid.
45. It was pointed out to the respondent that he wrote prescriptions of Primoteston for Patient D on 10th February and again on 21st February 2006 with the effect that the patient had available to him 24 Primoteston injections in 11 days. He was asked what he thought the patient was doing with the drugs prescribed by him and the respondent said: " I never think about these things... " and later when pressed said: " I don't want to think... ".
Benzodiazepines
46. 46 The respondent prescribed benzodiazepines to 15 patients referred to in the Schedule.
47. Patient E first consulted the respondent on 29th September 2005 when the respondent prescribed Kalma and Antenex; two benzodiazepines. The noted indication is " anxiety and insomnia ". While also prescribing steroids and other drugs at the request of the patient, the respondent prescribed at least one benzodiazepine at each consultation.
48. He was asked by the PBS investigators how he came to prescribe Kalma and Antenex; the respondent said that the patient asked for them. When asked about the indication of anxiety, the respondent said that the patient told him he was anxious. That was the extent of his enquiry on the issue. On one occasion the respondent prescribed three different benzodiazepines at once for this patient. He said that he did so because the patient asked for them.
49. Patient L was prescribed benzodiazepines. The respondent said that the patient was addicted to benzodiazepines and he had tried to persuade him to stop using them but the patient refused. The respondent's response to the patient's refusal was to continue writing the prescriptions. In fact, the respondent said that the patient rang him at night at home and came to his house demanding prescriptions for benzodiazepines. When it was suggested to him that the prescriptions he wrote for this patient on the 5th and 6th April 2006 amounted to a daily consumption of up to 50 tablets a day, the respondent said that he thought that the patient's girlfriend was also using his tablets.
50. On the 22nd November 2005 he wrote a prescription for 200 Normison 10mg tablets for Patient L. The respondent said:
- "This one, he doesn't take much Normison himself. He bought this for his boss. That's what he said, I want some Normison for my boss....His boss owns nightclub." (6)
51. The respondent had not seen Patient L's boss as a patient in his own right but had talked to him at the nightclub where he worked. He said that every couple of months Patient L asked for Normison for his boss and the boss had told the respondent that he would pay money for it.
Ketamine
52. The respondent prescribed Ketamine for Patient O . Ketamine is used primarily for inducing and maintaining anaesthesia and used either in acute care or palliative care settings. The reason noted for the prescription was " muscle building ".
53. Dr Jeremy Bunker said that there was no recorded indication to warrant the prescription of Ketamine. He said that it is a drug well known as being open to abuse and general practitioners are well aware of that risk.
Ephedrine, Rivotril
54. The respondent prescribed Rivotril and ephedrine hydrochloride for two patients, A and F.(7)
55. Patient A first consulted the respondent on 17th November 2005. The record notes " needs medication ". On this first consultation the respondent prescribed three androgenic anabolic steroids and a benzodiazepine. On the third visit November 28th, the respondent added ephedrine hydrochloride again noting " needs medication ". On 30th December 2005, the respondent also prescribed Rivotril and ephedrine in addition to three steroids for this patient.
56. When asked why he prescribed ephedrine for Patient A, the respondent said that he did not know why but said that the chemist " John " had told him that the patient probably wanted to wake up for work.
57. The only legitimate indication of ephedrine in general practice is as a decongestant. Dr Bunker noted that there was nothing in the respondent's notes to indicate that the prescription was clinically indicated. He said the respondent's note of the consultation in which it was prescribed refers to anxiety and said that a common side effect of ephedrine is symptoms of anxiety and insomnia. Dr Bunker said: (8)
- "...it is remarkable to say the least that this medication was prescribed at the same time or adjacent to consultations where benzodiazepines were being freely prescribed and anxiety was being diagnosed in the absence of any indication of any symptoms for which the use of ephedrine may be appropriate."
58. Rivotril is indicated for the treatment of partial or generalised seizures. It has a well-recognised potential for abuse. The respondent told the PSB investigators that he knew that it was to be used for seizures but said that he prescribed it for Patient E because the patient requested it.
59. While he was not asked specifically about his prescription of Rivotril for Patients A or F, the Tribunal has no reason to assume that it was done otherwise than on the patient's request.
Prescribing without knowledge
60. The respondent did not indicate on the prescriptions the directions for use of the drugs because, he said, that the patients knew how to use the drugs and what quantities to take. He did not include on the prescriptions the interval between repeat prescriptions because he did not know he was required to include that information. Nonetheless the respondent continued to prescribe for these patients even though they obtained repeated prescriptions before the time specified.
61. It is clear from what the respondent said to the officers from the PSB that he simply wrote the prescriptions for which he was asked.
62. When he was asked whether he was aware that a practitioner writing a prescription for a restricted substance, such as steroids or benzodiazepines, was required to indicate the interval between any repeat prescriptions, the respondent replied that he only became aware of that from the chemist, John, who worked close to the surgery and who usually dispensed his prescriptions.
63. The respondent said:
- "...initially I'm writing it and I say, is it okay to write these things, and he says okay fine. He dispensing it right...and after a while he talked to me...after a couple of months...he say Kelvin we got to do down this rate like this kind or rule, you've got to put down ...interval." (9)
64. As a result of what he was told by the pharmacist, the respondent began putting intervals on the prescriptions for steroids. This was some two or three months after he started writing the prescriptions.
65. When discussing the recognised indication for the prescription of Sustanon, the respondent said that when the body builders asked for it he rang John who told him that it was okay to write the script.
66. He did not know that Sustanon was essentially the same drug as Primoteston depot.
67. As to why he did not include a dosage on any prescription for steroids, the respondent said that the patients knew how to take them and in any event he did not know how much one should take of these things. John told him to:
"...put down..1ml every four days or 1ml a week and then how many repeats and you've got to write down like that then I start doing it." (10)
68. The respondent said that he did not realise at the time that he was prescribing for Patient A at a rate nine times the recommended dose of Sustanon.
69. The respondent did not know of the indications for the prescription of Pregnyl but did know that Nolvadex-D was used for breast cancer because he had studied that in medical school.
70. The respondent was asked why he prescribed DHEA or Prasterone for Patient A. He said that John told them (the patients) that it was good and told the respondent that it was not really like an anabolic steroid but a form of naturopathic medicine. The respondent understood it to be a precursor of steroid. Effectively, the respondent prescribed this medication to patients because the chemist recommended it.
71. The respondent did not know why he prescribed three anabolic steroids for one patient at a time other than the patient requested it. At the same time the respondent prescribed ephedrine hydrochloride because the chemist told him it was alright to do it. The respondent said that he did not know what ephedrine did nor what the recommended dose should be. (11)
72. The respondent agreed that the computer system in the practice had on it an electronic version of MIMS which he could freely consult when prescribing. He said that he did not use it but could not explain why he did not try to inform himself about the drugs that he was prescribing so freely to patients.
73. The respondent said that he prescribed Rivotril for Patient E at the patient's request. He added that after he had prescribed it the chemist, John, told him that he had better not write prescriptions for Rivotril again because: " it is no good ".(12) John told the respondent that instead he could give the patient Xanax or Valium. John also told the respondent that he had to cut down on the number of prescriptions that he was writing for benzodiazepines.
74. When asked about the possible side effects of steroid use on the patients the respondent said:
- "I actually don't know the possible side effects. From my own knowledge, I might be guessing...I'm not very knowledgeable about anabolic steroids, I think if you for long long term use, very long term use because I never actually studied bodybuilding in medicine when I was in medical school...I don't know actually exactly how you should monitor them... ."
75. The respondent limped on this way before finally mentioning that Arnold Schwarzenegger had liver and kidney problems. (13)
Dr Bunker
76. Dr Bunker said that the amount and frequency of the prescriptions for benzodiazepines issued to these patients by the respondent clearly indicated consumption at a very high level in a number of patients, unjustified by any clinical indication. The respondent prescribed large amounts in the knowledge that dependence was a risk of benzodiazepines use.
77. Anabolic androgenic steroids and Rivotril are drugs well known as having the potential for abuse. Dr Bunker's criticism of the respondent was heightened by the prescription of these drugs in large quantities and also in combination with other drugs.
78. If a practitioner does not know or is unsure of the indications for a drug, he or she has access to a number of sources of information not the least of which is MIMS which is available electronically as one prescribes. Dr Bunker said that there was an abundance of sources of information about indications and warnings about drugs.
Prescribing outside a clinical setting
79. The respondent referred to writing prescriptions for Patient C on a Saturday or other days when he was not at work. The respondent said that Patient C was a friend.
80. He agreed that sometimes he took his prescription pad out with him at night to write prescriptions for his friends at nightclubs and other social events.
81. In evidence to the Tribunal he said that he began taking his prescription pad to parties and social gatherings in 2004-2005. Later he took the pad to the nightclubs he frequented to write prescriptions for regulars there. He said that some of his patients asked him to bring his prescription pad to the nightclub because there would be people there who would want drugs. (14)
82. Dr Bunker regarded this as a significant departure from expected standards because it took prescribing out of its proper context, the consulting room. It is in the clinical setting that a practitioner can take a history, make an examination and refer to clinical records.
83. Dr Bunker said of the respondent taking his prescription pad to a nightclub:
"It is a striking example of the respondent's perception of his role as facilitating access to drugs on patient request rather than having any role in determining the appropriateness of medication for a particular patient at a given time. This in turn raises serious doubts about whether the respondent has an appropriate idea of the professional responsibilities of a doctor in general terms." (15)
84. As to prescribing for friends, Dr Bunker observed that professional and personal relationships should be kept separate. In the respondent's case there were other practitioners with whom he practised who could have taken on the management of the patients and this would have, in Dr Bunker's opinion, alleviated the stress for the respondent in refusing the patient's requests.
Self-prescribing
85. The respondent began self-prescribing benzodiazepines in about January 2000 and continued until November 2006. He said (16) that initially he would use one or two tablets at once but his use escalated over time to the point where he was taking up to seven to eight tablets at once in 2006. So much is evidenced by the schedule setting out the respondent's prescriptions for himself.
86. On 5th May 2005, the respondent prescribed for himself, 75 tablets of temazepam 10mg, 50 tablets of 30 mg oxazepam and also prescribed a sedative for himself; nitrazepam. On 10th December 2005 he prescribed Xanax 2mg 50 tablets, 10mg temaze 50 tablets having prescribed 100 tablets of Valium 5mg 2 days earlier.
87. These are not isolated examples of the respondent's self-prescribing.
88. The respondent said (17) that he prescribed benzodiazepines for himself to use after drinking. He said that he usually drank on Friday and Saturday nights and found it difficult to sleep and would take benzodiazepines. He denied to the Section 66 Inquiry that he was dependent on them.
89. Dr Wright gave evidence to the Tribunal. He accepted the respondent's account that drinking gave him palpitations and that he needed to take benzodiazepines to sleep after a night out drinking. However he said that for the respondent to take 7-8 tablets each night and not be deeply sedated implied habituation to the drugs.
90. The respondent's evidence to the Tribunal was that he restricted his drinking and therefore his use of benzodiazepines to the weekend and his work was not affected. This was not the evidence of Dr Bitlan, the director of the medical practice at which he works and did work through this period.
91. Dr Bitlan said (18) that in the period leading up to his suspension, the respondent would often arrive for work late without having told the reception staff, leaving patients waiting. On a few occasions he failed to come to work at all. When she discussed this with the respondent, he said that he was having trouble waking up. Dr Bitlan then arranged for staff to telephone him to wake him up for work. Sometimes he would answer the phone, other times not. She knew that he was going out to nightclubs. She said that he was coming to work is a dishevelled state.
92. This is a different picture from that which the respondent painted of how he managed at this time.
93. It is difficult not to come to the conclusion that the respondent was dependent on benzodiazepines.
94. On the 20th May 2006 the respondent entered a pharmacy and attempted to write a prescription. Despite a number of attempts, he was unable to complete the prescription, screwed up the mistaken documents and threw them on the ground. When he was asked why he was there he jumped up and said that he was the " bad boy doctor " and said that everyone knew the " Bad boy Dr Wong ". The pharmacist's assistant said that the respondent was incoherent. The pharmacist on duty that night said that the respondent was dishevelled, his clothes were untidy and he had blood on his face. He was incoherent and he appeared to be fidgety and restless. He eventually completed a prescription for Kalma which was dispensed to him. The prescription was written on a prescription pad that he was carrying with him.
95. Dr Bunker said that the cumulative quantities and the amounts of benzodiazepines that the respondent prescribed for himself on individual prescriptions was large. He referred to an occasion on which the respondent prescribed 5 diazepam, 50 alprazolam and 20 Panadeine Forte and on another occasion prescribed 100 alprazolam and 50 temazepam and four days later prescribed 100 diazepam. His average consumption as calculated by Dr Bunker was 4-5 tablets every day or higher daily dose if less frequent. He said: (19)
"This level of consumption which can only indicate significant anxiety, dependence or diversion. For either of these first two possibilities it was inappropriate for the respondent to be self-managing a significant condition. I also endorse Dr Wright's comments that such a level of benzodiazepines use was likely to be affecting cognition and judgment particularly in combination with alcohol."
Convictions
96. On 6th November 2005 police found the respondent asleep at the wheel of his car which was parked in the middle of the street with its engine running. Police could smell alcohol on the respondent's breath and he was unsteady on his feet. He was tested and found to have .120 grams of alcohol in his blood. The respondent was charged with mid range PCA. His driver's licence had expired in June 2005. The respondent told police that he knew that but did not offer a reason why he was driving on an expired licence. The respondent was charged with driving with an expired licence and fined. On the PCA he was disqualified for driving for 12 months from 6th November 2005.
97. Police found a collapsible baton in the door pocket of the respondent's car. He told them it was there for protection and told police that he had other weapons at home. Police accompanied him home and confiscated what the respondent called a toy gun, something he had been given as a boy and a taser-like instrument. As a result he was charged with three counts of possessing prohibited weapons. He pleaded guilty to these charges and was fined on each and on two counts was placed a bond to be of good behaviour for 2 years.
98. On 2nd May 2006 the respondent was driving his car and collided with another car. He was charged and convicted of driving whilst disqualified. He was disqualified from driving for a further 2 years and placed on a 2-year good behaviour bond. He was also charged with driving contrary to the direction of the traffic lane, driving a vehicle on which the motor vehicle tax had not been paid, driving an uninsured vehicle. On these offences he was fined.
99. The circumstances of these charges are of some importance in the matter. According to the police facts, the respondent failed to obey the marking on the lane in which he was driving, that is he continued to drive straight ahead from a lane that was marked with a left turn arrow. In doing that he collided with a taxi that was obeying the traffic directions.
100. The convictions in relation to these offences were recorded as follows; PCA on 22nd March 2006, driving while disqualified on 21st September 2006 and the three weapons offences on 4th December 2006.
101. Section 127B of the Act imposes an obligation on a practitioner to advise the Board within 7 days of the fact of any criminal conviction and of any penalty imposed.
102. The respondent did not notify the Board in relation to any of the offences of which he was convicted. He said that he was unaware of any obligation to report the convictions to the Medical Board.
Records
103. There was no doubt that the respondent's records of these consultations were woefully inadequate.
104. A practitioner's notes should contain sufficient detail of the patient's presentation and history, findings on examination, conclusions reached and management plan as to enable another practitioner reviewing or taking over the management of the patient to understand what has occurred in the treatment of the patient.
105. 105 Dr Bunker said that there were no meaningful notes or entries in the respondent's records for any of the patients referred to in Schedule B to the complaint. In many instances the respondent noted " muscle building " or " lethargy " as reasons for presentation without elaboration. In relation to many of the consultations with Patient D the respondent noted " needs medication " as the reason for the consultation. However this note is in the context of there being no medical indication after multiple symptom review and examination. No diagnosis is recorded, no plan indicated and, despite noting " oral antibiotics ", none was prescribed.
106. Given that the respondent's approach to these patients was to prescribe what they asked for, at the dose they requested and as often as they liked, it is unsurprising that the notes are deficient.
Credit
107. Although there can be no argument that the respondent gave full and inculpatory responses to the officers from the PSB at the interview and has continued to freely admit his wrongdoing about the way he prescribed, the Tribunal has concerns about his credibility.
108. The Tribunal formed the view that in some respects the respondent had not given a frank account of his actions.
109. The respondent said in his affidavit of 14th December 2006: (20)
Sometime thereafter Patient D attended and during the course of the consultation requested that I prescribe Sustinin (sic) for him. He advised me that it was for his own personal use as he was a personal trainer and body builder.""...I was consulted by Patient D. He initially presented requesting a general medical examination and certain blood tests. He subsequently consulted me on two or three occasions in relation to general medical issues.
110. The patient records are clear that it was on the very first consultation with this patient that the respondent prescribed an androgenic anabolic steroid at the patient's request. The respondent agreed in evidence that, contrary to his assertion, he prescribed steroids on the first consultation for this patient.
111. At paragraph 15 of the same affidavit, the respondent asserted that other patients began asking for steroids but only after several consultations for general medical problems. This is not supported by the records which show the patients received steroids on the first consultation.
112. As to his conviction for driving while disqualified, the respondent said in his affidavit that on one occasion he was late for work, decided to drive and was involved in an accident " although it was not my fault ". (21) In fact, the accident was caused by his failure to obey a directional marker and he was charged and convicted of an offence in relation to this. Further, the respondent admitted in evidence that far from the implication conveyed in the paragraph that this was an unfortunate one-off instance of driving, he had been regularly driving his car while disqualified. (22)
113. At paragraph 20 of the same affidavit the respondent said that the baton was in his car because it was an unwanted birthday present that he had not had time to dispose of. He told police on the night of his arrest that he kept it for protection. He adhered to this version in evidence and added that the baton and the the Taser type weapon had been given to him by one of his drug seeking patients and he also intended to use it for his own protection.
114. The respondent agreed that his comments to the police who were called to the surgery building in July 2006 that he only prescribed steroids to " one or two patients " was false and designed to deflect investigation of his prescribing practises.
115. The Tribunal finds that in these respects the respondent gave a significantly tailored version of events so as to minimise his conduct and from which he resiled when cross-examined.
116. When considered individually each matter to which the Tribunal has referred may seem trifling but when considered together and when taken into account with the significant difference between his evidence and his affidavit, has caused the Tribunal to approach his evidence with caution.
117. The Tribunal rejects the respondent's evidence that he was uncomfortable and hesitant to write the prescriptions for steroids for his patients. His account of the prescribing to the officers from the PSB makes for chilling reading and reveals what the Tribunal finds to be an entirely unconcerned and laissez-faire attitude to prescribing.
Section 66 Inquiry Findings
118. In determining to suspend the respondent in December 2006, the Section 66 Inquiry made a number of findings about the respondent's practice of medicine.
119. The delegates to the Inquiry were astute to the possible serious consequences that may have arisen from the respondent's prescribing practices and doubted that he fully understood the gravity of his previous behaviour despite his acknowledgement of the misconduct. It was also concerned that benzodiazepines and alcohol use may have contributed to his lack of judgment.
120. The delegates were concerned that the respondent's judgment may be impaired and considered that the reasons he gave for prescribing as he did; a need to be liked and an inability to refuse patients' requests, may continue to affect his ability to practise.
121. The Inquiry re-convened in 2008. The delegates noted that in the time that had passed since the respondent was suspended from practice, he had undertaken monthly drug testing and thrice weekly urinalyses all of which had been negative. He had met Dr Wright on a number of occasions. Dr Wright had reported a significant change in him over the time that he had been seeing him and the respondent himself told the Inquiry that he had made changes in his life.
122. The delegates accepted the reported changes but felt that notwithstanding them, there remained a need for further development and maturity in his attitude to professional practice. The delegates were not convinced that the respondent was able to manage difficult, drug seeking patients.
123. The Inquiry lifted the order suspending the respondent but made his practice conditional on a number of matters, including nominating and attending on a supervisor, participating in Continuing Medical Education on the management of difficult patients and also imposed various health conditions.
124. The respondent has complied with these conditions.
Dr Wright
125. Dr Wright first saw the respondent in February 2007, not long after he was suspended. In this first report (23) he commented on the respondent's lack of knowledge of the risks of the drugs he had prescribed and of boundary issues when dealing with patients. Dr Wright thought that this probably reflected the respondent's very limited continuing medical education and the respondent's view that he knew enough for the type of practice in which he had been working.
126. Dr Wright noted:
- "(The respondent) appears unconcerned at the potential risks associated with his prescribing habits and when seen by me gave the strong impression that he believed the main problem was breaking some regulations rather than any potential clinical risk".
127. There were a number of other matters that concerned Dr Wright; that the respondent appeared to minimise the risk associated with his own alcohol and benzodiazepine use and that he was unaware of their impact on his functioning and decision making capacity.
128. In his 2008 report (24) Dr Wright noted that the respondent had made significant changes in the previous 12 months including being abstinent from alcohol and benzodiazepines and having changed his social activities away from the nightclubs that he used to frequent. He felt that the respondent had gained some understanding of the impact of benzodiazepines and alcohol on his professional functioning. He considered that it would be appropriate to allow the respondent to practise subject to conditions.
129. In his report of February 2009 Dr Wright commented that the changes previously noted had been maintained and recommended that the condition that the respondent undergo urinalysis be reduced from thrice weekly to be on a random basis but otherwise the practice conditions should continue.
130. Dr Wright's last report is dated January 2010. Once again he observed that the changes to the respondent's lifestyle had been maintained, he was not drinking and not socialising at nightclubs. He believed that the respondent demonstrated significant insight into his conduct and said that the respondent displayed a more mature attitude to his work and responsibility. He believed that the risk of the respondent engaging in similar behaviour in the future was low.
131. He recommended that if the respondent is permitted to continue to practise, the conditions on his right to practise remain for a period of time because he is facing the stress of the Tribunal hearing and preparing himself for his RACGP exam.
132. In evidence Dr Wright said that when he first saw the respondent he was highly critical that, despite having been a general practitioner for some years, the respondent had no apparent knowledge of the drugs he was prescribing. Dr Wright was also critical of his apparent lack of awareness or interest in his own professional responsibilities or his responsibilities to continuing education.
133. Dr Wright said:
- "I thought he was lacking comprehensive knowledge and seemed not disturbed by that. 'Glib' is a fair word to describe a number of his comments at the time." (25)
134. In a sense Dr Wright's impression of the respondent was reflected in the respondent's evidence to the Tribunal when he was asked why it was that he did not bother to look at the contra-indications for the use of the drugs he was prescribing. He said:
- "Just maybe like I was just ignorant...Yeah, not checking it, lazy" (26)
135. He was asked whether it mattered to him that the drugs he was prescribing could be abused and he said: " probably not ". (27)
136. Dr Wright attributed naivety and immaturity as a factor in the conduct. He felt that the respondent was not interested in maintaining professional standards and had no sense of loyalty or engagement to the practice. (28) He suspected that he had been exploited by a patient who saw him as a soft touch and who spread the word around his associates to the point where the respondent began mixing socially with them.
137. Dr Wright said that having had the benefit of seeing the respondent over a 3-year period, he believed that the changes to the respondent had been consolidated.
138. Since being permitted to resume practice, the respondent has been supervised by Dr Daniela Bitlan. Dr Bitlan is the director of the Pitt Street Medical Practice and has worked with the respondent since 1998.
139. She was surprised when in 2006 she heard that the respondent had been drinking and taking drugs. She was unaware that he was prescribing steroids until he was audited by the PSB. Up to and throughout 2004 she had regarded him as a good general practitioner, worth keeping in the practice.
140. Dr Bitlan said that gradually in 2005 the respondent's patients changed and he was seeing patients who were obviously seeking benzodiazepines. The respondent became less dependable and this escalated until he was suspended. She said that he appeared to her to be someone who had lost ideals and, although she spoke to him a number of times, felt that she did not reach him. (29)
141. She has observed a change in him since being permitted to practice, he is punctual and eager to improve his knowledge within the practice and willingly assists her if requested. He has a number of patients who only wish to consult him and she believes he is a good doctor.
142. While the Tribunal accepts that Dr Bitlan, as Medical Director of the practice, attempted to assist the respondent during 2005 when he obviously was failing in his obligations to the practice, it is notable that up until then she regarded him as a decent doctor, albeit immature and one who treated the practise of medicine a bit lightly. (30) Clearly the respondent was able to keep his conduct well hidden from her until 2005. The respondent said that he never discussed his prescribing with any other member of the practice because he did not want it known.
Discussion
143. The Tribunal finds that the respondent's conduct as reflected in the various particulars of the complaint, amounts to a complete abrogation of his responsibilities as a medical practitioner and demonstrates an abandonment of principle. He showed no concern or even a passing interest in the welfare of the patients who were taking the vast quantities of drugs he was prescribing. Indeed he was unconcerned whether they were taking the huge amounts of drugs or selling them.
144. The respondent well knew that his conduct was wrong and made sure that his colleagues at the medical practice did not find him out. He knew that there was no auditing of the Medical Director System of computerised prescriptions and, on his own admission, also wrote private prescriptions. He was clearly prepared to exercise no control over his patients or his own conduct. The Tribunal finds it particularly horrifying that the respondent took the advice of the pharmacist not only about how to write the prescriptions but about what to prescribe.
145. The respondent was, during this time, nothing more than a drug dealer. If this proposition needs illustration it is in his willingness to take his prescription pad to the nightclub at the request of the owner and write prescriptions for all and sundry while there.
146. At all material times the respondent had available to him much information about the drugs he was prescribing. The practice had a computerised system that allowed him to consult MIMS about the indications, risks and restrictions on the drugs he was prescribing. He chose not to inform himself. That is not to say that the Tribunal accepts that the respondent was entirely unaware of the nature of all of the drugs he was prescribing. His interview with the PSB officers makes it clear that he at least knew the clinical indications for the appropriate prescription of steroids, knew that Nolvadex-D was used in treatment of breast cancer and he had some notion about the risks of long term steroid use. At all times he was aware of the use and restrictions on the prescription of benzodiazepines and knew that they are drugs on which a patient may become dependent.
147. It is important to observe that the respondent's conduct was neither isolated nor reflected a passing lapse of judgment. He commenced writing prescriptions on demand in 2001 and continued to do so until mid 2006. It is relevant too that he persisted in writing prescriptions on demand notwithstanding being counselled by an officer of the PSB in February 2006. His assertion that he tried to reduce his prescribing to his regular patients and refused to take on new drug seeking patients is, in the Tribunal's view, a paltry response to that clear warning.
148. The Tribunal views the respondent's conduct as reprehensible.
149. This matter concerns sections 36 and 37 of the Act .
150. Those sections are in the following form:
- S 36(1) "For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:..
- (a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgement or care, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
(c) Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject.
(m) Any other improper or unethical conduct relating to the practice or purported practice of medicine.
S 37 "For the purposes of this Act, professional misconduct of a registered medical practitioner means:
(a) unsatisfactory professional conduct
- (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct,
of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register."
151. Section 64 of the Act provides for a range of orders which may be made by the Tribunal on making a finding of either unsatisfactory professional conduct or professional misconduct.
152. Dr Bunker's view was that in all respects the respondent's conduct fell significantly below the expected standard and in nearly every respect, the conduct warranted his severe criticism.
153. The jurisdiction of the Tribunal is a protective not a punitive one. (31) The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in protection of the community and also to protect the good standing and reputation of the profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way. The role of the Tribunal is also to ensure that public and professional colleagues can place their confidence in the practitioner:
- "One element of deterrence is providing an assurance to the public that serious lapses in the conduct of....practitioners will not be passed over or lightly put aside, but will be appropriately dealt with." (32)
154. To give effect to the protective jurisdiction of the Tribunal, it may make orders which operate in two ways; by preventing the practitioner from practising or by deterring him from repetition of the conduct. (33)
155. The Tribunal notes the principles relating to its protective function and in particular the finding of Basten JA in Prakash v HCCC (34)at paragraph 91:
- "... any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so."
156. Some time has passed since the respondent behaved in the way complained of and that can be relevant to the orders made by the Tribunal. Lapse of time may be relevant in determining whether the respondent has undergone a reformation of character or whether the conduct complained of was an isolated or passing departure from proper professional standards. (35)
157. The Tribunal accepts that in the time since the respondent was suspended and then permitted to practise with conditions, he has made some changes in his attitudes and habits that are likely to be enduring.
158. However, despite the changes that have occurred in the respondent's attitude to his professional and private conduct, the nature of the conduct, its persistence and the respondent's abandonment of principle and responsibility persuades the Tribunal that the only order that can properly meet the objectives of the Act is to order that his name be removed from the Register of Medical Practitioners.
159. The Tribunal considers that the respondent should not be permitted to apply for re-registration for a period of 11/2 years.
160. The Tribunal is concerned that the respondent was able to practise as a general practitioner with almost no relevant knowledge or skill. He said in his evidence that he undertook no further study after leaving medical training because he believed he had studied enough. The Tribunal believes that there remain considerable deficiencies in his knowledge and skills as a practitioner.
161. The Tribunal regards it as imperative that the respondent undergo further training in basic medical skills. While accepting that the Tribunal cannot make an order to this effect and it does not wish to be attempt to bind the hands of any subsequent Tribunal that may consider this matter, the Tribunal is of the view that if the practitioner successfully applies for re-registration, he should undertake a further year of hospital residency or some course of closely supervised medical practice preferably in a rural setting to enable him to gain the necessary skills and competencies which will enable him to gain entry to the General Practice Training Scheme should he wish to follow that course.
Orders
1. The Tribunal orders that the name of the respondent be removed from the Register of
Medical Practitioners.
2. The respondent not apply for re-registration until a period of 18 months has elapsed.
3. The respondent pay the applicant's costs of the hearing.
Endnotes
1 Schedule A to the Complaint. Patients A-E, G-P
2 Report Dr Jeremy Bunker 23rd November 2008, page 2,
3 Dr Bunker - page 3, Exhibit 4 @ page 1206
4 Exhibit 1, page 32
5 Exhibit 1, page 40
6 Exhibit A page 62
7 Although particular 6 to the complaint refers to Patient D receiving prescriptions for these drugs, it was conceded by the parties that the reference to Patient D was an error.
8 page 6, Exhibit 4 page 1187
9 Exhibit A page 27
10 Exhibit 1page 31
11 Exhibit 1 page 39
12 Exhibit 1 page 52
13 Exhibit 1 page 69
14 transcript page 39
15 Report 10.6.07 page 9
16 transcript page 59
17 transcript of Section 66 hearing Exhibit 1 page 142
18 transcript page 100.7
19 Report June 2007 page 10
20 Paragraph 9
21 affidavit 14.12.06 paragraph 21
22 transcript page 64
23 1st March 2007
24 March 2008
25 transcript page 54. 22
26 transcript page 37.30
27 transcript page 38.31
28 transcript page 51
29 transcript page 109.19
30 transcript page 106.39
31 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637D and F
32 Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441B, 471B. Also Craig v Medical Board of South Australia [2001] SASC 169 at [45]-[47]
33 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA
34 [2006] NSWCA 153
35 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637
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