HCCC v Schnapp
[2007] NSWMT 16
•5 April 2007
New South Wales
Medical Tribunal
CITATION: HCCC v Schnapp [2007] NSWMT 16 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dale Lynton SchnappFILE NUMBER(S): 40012 of 2005 CORAM: Ainslie-Wallace, DCJ - Bennett, Assoc Prof - Vamos, Dr M - Deveson, AO Ms A CATCHWORDS: Drug abuse - Restrictions on registration LEGISLATION CITED: Medical Practice Act 1992 ss 36 &37
Regulations to the Poisons and Therapeutic Goods Act 1966CASES CITED: Briginshaw v Briginshaw (19380 60 clr 336;
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 South Australia [2001] SASC 169;
NSW Bar Association v Meakes [2006] NSWCA 340DATES OF HEARING: 19.2.2007 to 21.2.2007 DATE OF JUDGMENT: 5 April 2007 LEGAL REPRESENTATIVES: For the Complainant C P Griffin of Counsel
For the Respondent R T Forrest of Queen's CounselORDERS: On finding that the respondent has, in each particular, demonstrated unsatisfactory professional conduct the Tribunal orders that any future registration of the respondent in NSW be subject to the following conditions;; 1. That he not be registered in NSW until he has demonstrated to the satisfaction of the NSW Medical Board that he is aware of the relevant NSW legislation and regulations governing the administration and handling of drugs;; 2. That he advise the NSW Medical Board of his place of employment and any proposed change of that employment within twenty-one (21) days before either commencing or changing the employment;; 3. That the respondent advise the Medical Director and Senior Anaesthetist of any hospital in which he is employed in NSW of the fact of his past drug abuse, that his registration has been subject to conditions including random urinalyses and that he give to the Medical Director and the Senior Anaesthetist a copy of the Tribunal's orders;; 4. That twenty-one (21) days before commencing clinical practise in NSW the respondent notify the NSW Medical Board of the name and professional address of a senior anaesthetist who is prepared to act as his professional mentor;; 5. The respondent will consult the mentor for a period of two years from the date of his application for registration in NSW;; 6. The nature and frequency of the contact between the respondent and the mentor is to be determined by the mentor in accordance with the Guidelines developed by the Medical Board of NSW; ; 7. The meetings between the mentor and the respondent will occur at least monthly and may be in person or by telephone at the convenience of the mentor and after discussion with the respondent and should be used to discuss any medical practice issues as they arise;; 8. The respondent is to provide the mentor with a copy of the Reasons for Determination and Orders of the Tribunal; ; 9. The respondent is to authorise the mentor to report to the NSW Medical Board every six months about the fact of the contact with the respondent and to inform the NSW Medical Board if he/she has any concern about the respondent's professional conduct or personal wellbeing;; 10. The respondent is to authorise the mentor to notify the NSW Medical Board of the respondent's failure to attend for consultation with the mentor, the termination of the mentoring relationship against the advice of the mentor or any other matter the mentor considers appropriate;; 11. The respondent is to bear any costs associated with the mentoring process;; 12. that the respondent pay the applicant's costs of the hearing.
JUDGMENT:
THE MEDICAL TRIBUNAL Thursday 5th April 2007
OF NEW SOUTH WALES
AT SYDNEY
No. 40012 of 2005
BETWEEN
Health Care Complaints Commission
Complainant
Dale Lynton Schnapp
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Associate Professor M Bennett
Dr M Vamos
Ms A Deveson AO
Orders and Reasons for Determination
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 "HCCC") complains [1] that the respondent is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Medical Practice Act in that he has:
- (a) demonstrated a lack of knowledge, skill, judgment or care in the practice of medicine; and/or
(b) engaged in improper or unethical conduct relating to the practice of medicine.
2 The HCCC relied on three particulars of the respondent's conduct to support the complaint.
That on 13th September 2001 the practitioner transferred Propofol from a Diprifusor syringe into an ordinary syringe and sought to remove Propofol from the hospital (this was referred to as Particular 5)
(a) contrary to the hospital guidelines concerning the disposal of unused medications;
That on 13 September 2001 the practitioner inappropriately attempted to dissuade two members of nursing staff at the hospital from completing incident forms about his conduct. (Particular 9)(b) contrary to the instruction of the Medical Superintendent
(c) with the intention of diverting the Propofol for his own use
That on 3 August 2001 the practitioner dealt with a Diprifusor syringe and a quantity of Propofol with the intention of diverting Propofol for his own use. (Particular 6)
3 In relation to each of the particulars of the complaint, the respondent agreed that his conduct demonstrated a lack of judgment and conceded that his conduct amounted to unsatisfactory professional conduct.
Background
4 The respondent is 55 years old and graduated MB BS in 1975 from Monash University. He has a diploma from the American Board of Anaesthesiologists conferred in 1980 after study in the USA. That Diploma was recognised by the Australian College of Anaesthetists in 1988. He was first registered in NSW in 1999. He has practised as an anaesthetist since being registered.
5 The respondent referred to himself as an "itinerant anaesthetist" by which the Tribunal understood him to mean that he has moved around many hospitals in Victoria and NSW both private and public administering general and obstetric anaesthesia.
6 The respondent said that in 1988 he developed a problem with drug abuse and was self-administering Fentanyl (a synthetic opiate referred to in Schedule 8 of the Regulations to the Poisons and Therapeutic Goods Act 1966).
The respondent's registration
7 In August 1988 the respondent notified the Victorian Medical Practitioners Board (the Victorian Board) that he "had a health problem related to substance abuse" [2] and he was referred by the Victorian Board to a psychiatrist, Professor Ball, for help in dealing with the problem. Professor Ball continued to treat the respondent until 2004.
8 Although the respondent was having regular consultations with Professor Ball, (who was also conducting urinalyses for the respondent), in August 1990 the respondent misappropriated an ampoule of pethidine. As a result his registration in Victoria was suspended from 30th August 1990 until 19th October 1990.
9 The respondent's registration was again suspended between February 1993 and December 1993 following further episodes of drug use. When the respondent was again permitted to practise, further conditions were placed on his registration.
10 The respondent again used drugs and again his registration was suspended from August 1996 to January 1998. After his registration was reinstated, he was subject to thrice weekly urinalyses.
11 His registration was suspended again from 28th September 2001 until January 2002. This suspension occurred because of the incidents particularised in the Amended Complaint.
12 In June 2005 the respondent was suspended from practice for one week after an allegation of unusual behaviour during an operation. The allegation was investigated and a hearing was convened after which it was determined that his behaviour did not constitute unprofessional conduct. The conditions on his registration were continued.
13 In September 2006 the conditions on his registration were again reviewed and modified in light of the Amended Complaint in this matter.
14 The respondent has been subjected to regular urinalyses from 1988, some of which were conducted by Professor Ball. In 1998 thrice weekly testing was required and from October 2000, the urine testing was random. For the random testing, the respondent was directed to ring a telephone number each day and a recorded message would advise him whether he was required to submit to urinalysis that day.
15 When the respondent was first required to submit to urinalysis, he was being tested for the presence of opiates and Fentanyl. In 2002 Propofol was added to the drugs for which his urine was tested. In October 2001 the respondent submitted hair samples for drug testing.
16 There was no dispute that from 1998 to the date of hearing, the respondent had not returned a positive urinalysis or hair sample test for drugs. From 2002 to the time of the hearing, no positive test for Propofol had been returned either from urinalysis or hair analysis.
17 The particulars alleged in this complaint together with other particulars which were not pressed before this Tribunal were considered by the NSW Medical Board (the "NSW Board") at an Inquiry convened under Section 66 of the Medical Practice Act 1992 on 26th September 2001. At its conclusion, the NSW Board imposed a number of restrictions on the respondent's right to practise. [3] Parts of the evidence in the 2002 appeal were tendered in this hearing. [4]
18 The respondent appealed to the NSW Medical Tribunal seeking a modification of the conditions imposed by the Medical Board. That appeal was largely unsuccessful. [5] The respondent retained a conditional right to practise in NSW until 15 December 2002 when his registration lapsed. The respondent has not practised in NSW since then and said that he had no immediate desire to do so.
19 There is a reciprocal arrangement between the Medical Boards of NSW and Victoria which resulted in the NSW conditions being imported into the Registration of the respondent in Victoria. The respondent said that after the appeal in December 2002, the conditions imposed by the NSW Board on his right to practise left him effectively unable to be employed.
20 Over time and after representations to the Victorian Board, the conditions imposed by the NSW Board were modified and, following reviews of the respondent's progress, further modifications were made.
21 From October 2006, there have been no restrictions on his right to practise in Victoria.
History to the complaint
22 In May 2001 the respondent was offered a position as anaesthetist in Wagga Base Hospital. At that time the conditions of his registration required him to submit to random urinalyses, not handle or administer Schedule 8 drugs and advise the Medical Superintendent of the hospital of his history of drug abuse.
23 The respondent worked at Wagga hospital from May until September 2001.
24 There were three events which occurred in that time which gave rise to the Complaint before this Tribunal. They are referred to in Particulars 5, 6 and 9 in the Amended Complaint. Particulars 5 and 9 relate to events which occurred on 13th September 2001. Particular 6 relates to events of 3rd August 2001.
25 It is helpful to give some background to those complaints. In doing so the Tribunal is mindful that only these three particulars comprise the complaint.
26 Propofol (also known by the trade name "Diprivan") is a drug commonly used for the induction and maintenance of general anaesthesia. At the time that the respondent was working at Wagga hospital, Propofol could be administered through an automated system using a Diprifusor pump. This particular machine was designed to deliver the anaesthetic in a controlled way. The anaesthetist enters the required blood level of Propofol and a number of variables relating to the particular patient into the machine - such as weight and age and the machine automatically delivers the Propofol at the necessary rate to achieve and maintain the "target" blood level.
27 The company which produces the machine designed it to use specific 50 ml syringes which contain a chip in the body of the syringe to allow an alarm to sound when there is about 10% of anaesthetic remaining in the syringe. This gives the anaesthetist time prepare a new syringe and replace the nearly empty syringe with minimal disruption to target blood level. The machine is designed only to accommodate the specific Diprivan syringes sold by the manufacturer of the machine. The syringes are not designed to be refilled. Once the: "near end of infusion" alarm has sounded, the syringe cannot be re-used in the machine.
28 At the time that the respondent came to work at Wagga hospital, the hospital had two Diprifusor machines. It was not necessarily the equipment of choice of all anaesthetists. The respondent knew that the hospital had Diprifusor pumps. Without consulting Dr Mulligan, the Medical Superintendent of Wagga Base Hospital about the demand for use of the hospital pumps nor asking the hospital make one available to him, in May 2001 the respondent arranged with the manufacturer of the machine to lend him one. [6]
3rd August 2001 - Particular 6
29 On 3rd August 2001 the respondent was the anaesthetist in theatre 3 of the Wagga hospital. Nurse Naseby was the anaesthetic nurse on duty. At the end of the operation she saw the respondent remove the syringe from the Diprifusor. There was residual Diprivan in the syringe and the associated tubing. The respondent said to her (indicating the syringe): "I am taking this home to work out the rate to set my Diprifusor". [7]
30 Nurse Naseby reported what she had seen and the respondent's comment to Dr Mulligan who spoke to the respondent on 3rd August about the incident.
31 When asked in evidence what he meant by this remark, the respondent said that he had decided to embark on an experiment using the Diprifusor machine because in June 2001 Dr Mulligan had asked him to reconsider his use of commercial Diprivan during operations.
32 He said that he decided to try to experiment with the Diprifusor syringe to try to refill the Diprifusor syringe with generic Propofol yet still use the Diprifusor machine.
33 To do this the respondent tried to alter the settings on the pump so that the alarm for the near end of infusion point was not activated when there was 10% left to be infused but at some lesser point. This would allow him more time to use a three-way valve to inject generic Propofol into the Diprifusor syringe which could continue to be used in the machine without the need to remove the almost empty syringe and replace it with another Diprifusor syringe.
34 The respondent said that from late July 2001 or early August 2001, on several occasions after an operation he took the Diprivan syringe from the Diprifusor and put the syringe into his bag and removed the used Diprivan syringes from the operating theatre. The respondent denied that he had taken the residual Diprivan home and said he discharged the drug into the waste at the hospital before leaving.
35 He was asked at the 2002 hearing why it was necessary to put the syringe containing the residual Diprivan into his bag rather than discharging the drug from the syringe in the theatre and taking the empty syringe. The respondent said:
- "There was so little in there that it would easily fit the bum bag and I just didn't bother. In retrospect it probably would have been smarter had I done that". [8]
36 The respondent maintained in 2002 and before this Tribunal that he did not take Diprivan home nor had he administered it to himself.
37 Through his experiments with the Diprifusor, the respondent said he had managed to extend the time before the alarm on the machine sounded and had increased the time to re-fill the Diprivan syringe with generic Propofol. He told no one about this. He did not he tell Dr Mulligan that he had managed this he said because her only concern had been his use of Diprivan syringes and he had decreased his use of them in this way. He did not tell Dr Mulligan that he intended to take used syringes home to experiment with until after Nurse Naseby had made the report about his actions on 3rd August.
38 The respondent said that there was no need to tell Dr Mulligan or seek her approval because the Diprifusor pump was his and the syringes were used and of no use to the hospital. [9] However, in his evidence in 2002, he claimed to have spoken about taking the used syringes a few days before 3rd August. He said that he went into the nurses' lounge and made a general announcement that he wanted to take home a used syringe to do some practise with features of the pump. [10] He recalled that someone said that it was okay to do that. When asked why he sought permission to take a used syringe given his evidence that the syringes were of no use to the hospital, the respondent said that he had conditions on his registration and did not wish to have the: "finger pointed at him" that he was doing something wrong. [11] He agreed that Dr Mulligan was the person who was, in effect, monitoring his conditional registration for the Medical Board, the respondent did not consider it appropriate or prudent to speak to her and tell her what he was proposing to do.
39 Neither in 2002 nor in 2007 could the respondent recall the name of any person who was present in the nurses lounge when he made the announcement that he was going to take a used syringe home.
40 For reasons which are discussed later in these reasons, the Tribunal considers it probable that no such conversation took place before the 3rd August 2001. The respondent conceded that he made no mention of this conversation before giving evidence in 2002. [12]
41 There was considerable evidence before the Tribunal in 2002 that there was nothing new in the technique of re-filling syringes using a three-way tap. Dr Mulligan said that before the introduction of the Diprifusor system it was commonly done. She said that once the Diprifusor system was introduced with Diprivan syringes to go with the pump, there was no need to refill a syringe. She would not have given the respondent permission to reuse syringes. She said it would have been inappropriate to make adjustments to the near end of infusion point of the Diprifusor pump. [13]
42 Dr Mulligan said that in the meeting of 3rd August, she asked the respondent either to return his personal Diprifusor pump to the manufacturer or bring it to the hospital and leave it there. The respondent said that it was at this meeting on 3rd August 2001 that he first told Dr Mulligan that he had been using discarded syringes and the pump to conduct the experiment.
43 After the meeting on the 3rd August 2001, the respondent wrote to Dr Mulligan on 6th August. [14] In that letter he said that he had conducted these experiments and, as a result had been able to reload the syringe with "ampouled Propofol". The respondent said:
"For you to have even considered that I would divert this drug was unwarranted. My registration conditions require verified adherence to higher health standards than are required from any other member of staff. Had I been stupid enough to commit the unthinkable, you would sooner have heard about it from the New South Wales Medical Board, not the nursing staff".
It is clear that he was well aware that his registration was subject to conditions and, as a consequence, was subject to greater scrutiny than other medical staff.
44 Dr Mulligan wrote to the respondent on 10th August and she confirmed the terms of their conversation of the 3rd August. [15] That letter contains two clear directions:
"... not remove any drugs or syringes from the operating theatre" and "discard Propofol and S8 drugs in the theatre in the presence of the anaesthetic nurse".
45 Dr Mulligan, notified the NSW Board of the events of 3rd August.
46 The respondent wrote to the Medical Board on 13th August. [16] After asserting that he had not breached the conditions of his registration, he observed that Dr Mulligan's: "directives are humiliating and protect no-one ", the respondent concluded by asking: " the Board allow me to get on with my life without further aggravation ".
47 The respondent's protestations and complaints about Dr Mulligan's directions to him are important to give some context to the next two events both of which occurred on the 13th September 2001.
48 On 10th August 2001, a theatre nurse noticed a syringe containing 10 mls of Diprivan on a table in the operating theatre and when she asked the respondent where the balance of the Diprivan was, he then produced the vial containing 10 mls from his pocket.
49 This incident does not form part of the particulars alleged against the respondent in the Amended Complaint. It did however prompt Dr Mulligan to draw a revised drug policy for the hospital. A copy of this was handed to the respondent on the 15th August 2001. That document [17] contains the following under the heading "S4 Drugs" (which included Diprivan):
- "At the end of a case, before the patient is removed from the operating theatre, the Anaesthetist, in the presence of the anaesthetic nurse, will empty all unused drugs out of syringes into the sharps bin. Empty syringes are then discarded into contaminated waste....Ampoules/vials containing residual drugs will be discarded into the sharps bin at the end of the case".
50 On the 6th September 2001, the respondent was notified of the proposed Section 66 Inquiry.
Particular 5
51 On the 13th September, Nurse Doran was rostered to an operating theatre in which the respondent was one of the anaesthetic staff. While she was cleaning the operating theatre she saw the respondent draw up the residual Diprivan from the Diprivan syringe and inject it into a 20 ml syringe. She said to him: "you are not injecting that Diprivan into that syringe, are you ?", to which the respondent replied: "No". An hour or so later she told the respondent that she was obliged to make a report about that incident. He said that he wanted to send a sample of Diprivan to the laboratory in Sydney which was testing his urine.
52 During the hearing in 2002, when asked about his answer to Nurse Doran, the respondent said that when he said "no", he was in fact answering the question whether he was going to use the residual Diprivan on another patient.18 The respondent said:
"What Anne Doran does not appreciate was that in a way I was answering the question that she had not asked. I knew ....that I was not permitted to use it on any other patient nor was I allowed to remove it from theatre and I felt that I was answering essentially the question of whether or not I intended to use it."
53 The respondent did not maintain that position before this Tribunal. In this hearing the respondent told the Tribunal that he replied " no " because: " I was already in a bit of a panic ". [19]
54 In the 2002 Tribunal proceedings, the respondent said that he discharged the Diprivan in the syringe into the waste in the theatre after he was challenged because Dr Mulligan had acted in a: " very hostile manner " towards him and he thought better of his plan to send the drug to the laboratory for testing. [20]
55 The respondent said by the 10th August 2001, he believed that Dr Mulligan had " made up her mind " that he was abusing Propofol.
56 The respondent said that he drew up the Propofol on the 13th September because it had occurred to him " on the spot " that he should send some to the testing lab and ask them to use it to test his past urine samples. In his evidence in 2002 he said that half an hour after being challenged by Nurse Doran he rang PaLMS (the testing laboratory) to ask whether they would accept the sample for testing. [21]
57 In his evidence to this Tribunal he said when asked why he did not enquire before he drew up the Propofol said;
"I'm the patient. I had no such obligation or right to make such inquiries. If the NSW Medical Board or the Wagga hospital felt that such testing was warranted… they had every right to initiate it themselves". [22]
58 Yet he also said that he was intending to remove a partially used, contaminated sample of drug to send to the laboratory.
59 At the time that he was challenged by Nurse Doran, the respondent did not know whether his urine had ever been tested for Propofol, whether a test for Propofol existed or indeed whether his past urine samples had been held by the testing authority. His claim that he collected residual Diprivan to send off to the testing laboratory simply cannot be sustained in the light of that evidence.
60 As early as 3rd August, the respondent considered Dr Mulligan to suspect that he was using drugs and that her directives were humiliating, yet in this context he said he was drawing up contaminated drugs from a used syringe to send off to the laboratory.
61 The Tribunal considers the respondent's conduct and explanations for his conduct in relation to this event to be improbable and his evidence about this matter inconsistent.
Credit
62 The respondent did not dispute the conduct which formed the basis of the complaint. The issue for the Tribunal to determine is the reason for the respondent's observed conduct. This question is to be resolved largely by determining the respondent's credibility.
63 In giving evidence, the respondent's answers were vague, discursive and often contradictory. It appears from reading the transcript of his evidence in 2002, that many of his answers have the same features.
64 Some answers, such as that he gave to the Tribunal in 2002, in explanation of what he meant by the answer " no " when he was challenged by Nurse Doran on 13th September were ludicrous and not maintained in this Tribunal. [23]
65 Equally, the respondent's explanation to this Tribunal for what he was doing with the Dirprivan on the 13th September is difficult to accept in the context of his evidence.
66 The respondent said that by 13th September he was becoming increasingly worried that he would lose his position through an alleged breach of conditions and he felt that Dr Mulligan did not believe his denials that he was using Diprivan. He had made no enquiries whether the laboratory could test for Propofol, and if so, whether it would accept a used, contaminated sample of the drug for testing.
67 Even accepting that he was worried, the Tribunal does not accept that the reason the respondent was drawing the residual Diprivan into the syringe was to send it to the testing laboratory.
68 It was argued for the respondent, that because this explanation was spontaneously given at the time he was challenged, it supported his credibility. In this instance, taking into account the respondent's evidence and the circumstances which existed at the time, the Tribunal does not accept that the fact that the excuse was proffered spontaneously should give it some heightened credibility.
69 The respondent's answers about whether drawing up the drug to send to the laboratory put him in direct breach of the hospital guidelines, were prevaricating.
70 These matters together with the respondent's demeanour as the Tribunal observed it during his evidence leads to the conclusion that the respondent is not a credible witness.
Self Administration
71 The applicant submitted that the evidence did not permit of a finding that the respondent had taken the Propofol to administer it to himself. It submitted that the evidence could support a finding that he intended it for a purpose other than to use as an anaesthetic agent.
72 After the Section 66 Inquiry, the Medical Board ordered that the respondent's urine be tested for Propofol. In October 2001 he also sent a hair sample to Professor Drummer, the Head of Scientific Services at the Victorian Institute of Forensic Medicine, to test for traces of Propofol. Professor Drummer said [24] that the length of the hair sample represented 3 months growth. No Propofol was detected in that hair sample.
73 It was undisputed that drug use, including Propofol can be detected through hair sample testing. Professor Drummer said that Propofol can be detected at 1ng/ml. He expected if someone was using Propofol it would be detected in hair analysis. Dr Lewis, the Departmental Head and Principal Scientist at Pacific Laboratory Medical Service Toxicology Unit (PaLMS) [25] questioned whether the detection limit would pick up sporadic use of Propofol in amounts less than that administered to patients during an anaesthetic. However, Professor Drummer was of the view that since the presence of Propofol was so readily apparent at the detection limit, had the respondent used Propofol during the period when his hair was growing (before giving the sample in October 2001), it would have been detected.
74 After sending the sample in October 2001, the respondent has had many hair samples tested for Propofol. None has been positive.
75 In the result, Professor Drummer conceded that the negative results could not prove abstinence but held to the view that there was a reasonable prospect of use being detected in hair sampling.
76 Given the negative urinalyses for Propofol and the negative hair analyses, the Tribunal is satisfied that had the respondent been self administering the Propofol, it would have been evident in the hair sample.
77 The Tribunal does not accept the respondent's explanation for decanting the residual Diprivan from the syringe on the 13th September. However, the evidence does not permit of a positive finding as to what the respondent intended to do with the drug.
Breach of Direction
78 The very act of drawing up the residual Diprivan from the syringe and decanting it was a breach both of the drug handling protocol (amended by Dr Mulligan in response to the respondent's conduct in relation to Diprivan) and of her direction to him of 3rd August. The respondent was reluctant to concede this. [26]
79 He said that he would not have been in breach of either the direction or protocol because, had he not been challenged, the next step would have been to approach the nursing supervisor and tell her what he intended to do. He said that it was appropriate to approach the nursing supervisor before speaking to Dr Mulligan, and then: " if she felt necessary, or even if not, I could then go to Dr Mulligan with that sample ". [27]
80 Even though he conceded that, in retrospect, it would have been proper to seek Dr Mulligan's permission first, when it was suggested to him that the act of leaving the theatre with the syringe containing the drug would amount to a breach of her direction, he argued that Dr Mulligan could have come to the theatre to give permission. [28]
81 The respondent said that, in any event, Dr Mulligan's directions were " in a large sense un-enforced and unenforceable. " [29]
82 This evidence was neither credible nor logical and the Tribunal is satisfied that the respondent was extemporising during the questioning. His attempt to fit his actions within the guidelines is another example of his lack of credibility but also shows a complete lack of insight into the effect of his actions.
83 These answers also demonstrate the respondent's attitude to the directions given to him consequent on his supervision.
Particular 9
84 After the respondent was challenged by Nurse Doran on 13th September, she told the Manager of the operating suite, Nurse Redfern. Nurse Redfern advised Nurse Doran that she must report the incident. Nurse Doran and Nurse Redfern told the respondent that they were obliged to make an incident report. The respondent asked Nurse Doran not to make a report and said that if she did " you might as well kiss me goodbye ". [30] Both Nurse Redfern and Nurse Doran said that the respondent begged them not to complete the report. He told them that he was having urine testing and wanted to send a sample of Diprivan off to the testing laboratory. Nurse Doran said to him: " Why didn't you go through the proper channels and get the pathologist to obtain a sterile sample for testing instead of giving them a contaminated and used sample? " The respondent said: " maybe I've gone about it the wrong way ".
Discussion
85 Throughout his evidence, the respondent showed very little understanding of how his behaviour would have been seen by those supervising the conditions on his registration. His response that the guidelines were "un-enforced", implying that others were not following them, demonstrates to the Tribunal that despite his letter to Dr Mulligan of the 6th August, the respondent really did not understand that he, as a practitioner who had abused drugs, should expect to be subjected to a higher level of scrutiny than others.
86 Equally his defence of his actions on 13th September as not amounting to a potential breach of the drug handling protocol and direction to him show very little insight into the conduct which formed the basis of the complaint.
87 It was argued for the respondent that he does have insight into his actions and is contrite but these aspects were subsumed by his anxiety to defend himself against the allegation of self-administration.
88 Even accepting that the respondent may have been anxious to be absolved of that allegation, the Tribunal is satisfied that his evidence shows little or no insight into his conduct at the time that the complaints were made. The time which has passed since the incidents has not served to give him a clearer, more objective view of his conduct.
89 The Tribunal finds that the respondent was deeply resentful of the conditions on his registration and that he resisted efforts to ensure that he complied with them. The letter to the NSW Medical Board of 13th August 2001 in which he speaks of getting on with his life without "further aggravation" is an example of this.31
90 The respondent said to the Tribunal that he well understood the reason why incident reports must be completed and conceded that he had acted completely inappropriately in trying to stop the nurses from carrying out their obligations. The Tribunal accepts, in this regard, that the respondent understands not only of the inappropriateness of his actions but also the important rationale for making such reports.
91 In relation to the other complaints, the Tribunal is not satisfied that the respondent understands the effect of his conduct. For example, he was asked to consider how his behaviour might have appeared to Dr Mulligan. He said: " she was right to be concerned that I do the right thing and be seen to do the right thing ". He then began to catalogue his complaints about Dr Mulligan and her attitude to him. He said that he had been wrongly accused. Whether or not the relationship between Dr Mulligan and the respondent had deteriorated and whether the respondent believed that he had been wrongly suspected of drug abuse, it was clear that he still could not see that his conduct, in the particular context, could be rightly regarded as being of significant concern.
92 The respondent's concession that his actions demonstrated a lack of judgement is well made. The Tribunal is satisfied that by the conduct which comprises the particulars to the complaint, the respondent's actions demonstrated an incapacity to accept and understand the reasons for his conditional registration.
93 This matter concerns sections 36 and 37 of the Medical Practice Act 1992 (the ' Act ').
94 Those sections are:
- 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...
(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 unsatisfactory professional 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."
95 Section 64 of the Act provides the range of orders which may be made by a Tribunal.
96 The respondent's conduct was considered by Dr John Warden, a specialist anaesthetist. [32] Dr Warden noted that Propofol is a potent drug which dictates that precautions be taken with its handling and disposal. As a Schedule 4 drug it should only be available for a specific patient for a specific purpose. He said that the community and health professional bodies expect anaesthetists to administer potent drugs with all care and to observe guidelines and directions for their disposal.
97 As to Particular 6; removing residual Diprivan into a syringe contrary to the hospital guidelines for the disposal of unused medications, contrary to the direction of the Medical Superintendent and intending to divert the drug for his own use, Dr Warden said that these actions do not meet an acceptable standard of practice and invite his and his colleagues severe disapproval.
98 In relation to Particular 5, Dr Warden said that to deal with a Diprifusor syringe and residual Propofol contrary to hospital guidelines, intending to divert the drug for his own use against the medication handling guidelines, incurs his and his colleagues severe disapproval. The conduct does not meet an acceptable standard of practice.
99 Dr Warden said that if the respondent was not diverting the Propofol to administer to himself, minds might differ as to whether this conduct invited severe or moderate disapproval.
100 In relation to Particular 9; attempting to dissuade nurses from making an incident report, Dr Warden said;
- "Every anaesthetist (and all practitioners) must expect that the standards of their practice are scrutinised and, that when those standards are seen to depart from what is acceptable, their practice is reviewed...Practitioners know that evaluation of their practice made by others is part of the ongoing process of ensuring clinical competence. To impede any step in this process is to impede quality assurance."
101 In relation to this conduct, Dr Warden said that it did not meet an acceptable standard of practice and invites his and his colleagues' severe disapproval.
102 The Tribunal is satisfied to the requisite standard [33] that, in relation to particulars 5 and 6, the removal of the used Diprifusor syringe and residual Diprivan on 3rd August and the withdrawal of the Diprivan from the used syringe on 13th September, is conduct amounting to unsatisfactory professional conduct. It is conduct which demonstrates a lack of adequate judgment.
103 Attempting to dissuade the nurses from completing an incident report form about his conduct (Particular 9) is of a more serious nature. Apart from the obvious need to provide a clear chain of reporting to protect the patients and staff in any hospital, there is an obvious power imbalance between a practitioner such as the respondent and a nurse. In other circumstances, the Tribunal would have regarded this conduct as being particularly reprehensible. However, given what the respondent said and that the attempt to stop the nurses from making the report did not include threats and was not persisted with when they, to their credit, refused to be dissuaded, the Tribunal is satisfied that this is conduct which amounts to unsatisfactory professional conduct and does not amount to professional misconduct.
104 The jurisdiction of the Tribunal is a protective not punitive one. [34] 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". [35]
105 To give effect to the protective jurisdiction of the Tribunal, it may make orders which operate in a number of ways; by preventing the practitioner from practising or by deterring him from repetition of the conduct. [36]
106 Since the respondent left his employment at Wagga Base Hospital he has been working in Victoria. He found it difficult to find employment with the conditions imposed by the NSW Medical Board in place. After the condition relating to his handling and administration of Schedule 4D and Schedule 8 drugs was removed in April 2003, the respondent obtained work at Epworth Hospital in Victoria as an anaesthetist.
107 Two doctors with whom the respondent works at Epworth provided letters about his work. Dr Dorman, a neurosurgeon and Executive Medical Director of the Epworth Hospital, said that he had no concerns about the respondent's clinical competency and experience. Dr Steven Chan, a general surgeon, said that the respondent is his preferred anaesthetist when operating at the Epworth Hospital. Dr Chan said that the respondent was reliable and competent and said that the respondent has always behaved in an exemplary professional manner.
108 Apart from the complaint and suspension of his registration in 2005, there have been no complaints about his conduct and no positive urinalyses have been returned. The condition for urinalysis was lifted in October 2006.
109 The actions of the respondent over the period of this complaint together with the findings as to his credit leave the Tribunal with concerns that the respondent should not practise medicine in NSW without conditions on his registration.
110 In coming to that view, the Tribunal accepts that there have been no positive indications of Propofol use. However, the respondent's lack of insight into his conduct and his resistance to supervision cause the Tribunal concern that he remains vulnerable to drug abuse.
111 At the time that the respondent was practising in Wagga, it seems that he had little in the way of support, either social or professional. He said that from time to time he met for discussion with the other anaesthetists practising in Wagga. He did not discuss with them or with any other colleague, his proposed experiment to change the settings on the Diprifusor pump. The Tribunal is of the view that if the respondent had a mentor, a colleague with whom he could candidly discuss what he was doing and who knew of his conditional registration, the respondent may have been able to discuss with that mentor the advisability of his actions in experimenting with the syringes.
112 In evidence, the respondent said that he was not aware that Schedule 4D drugs were restricted and that he did not know of any classifications of drugs beyond Schedule 4. [37] When was asked whether there were differences between the classification and restriction of drugs NSW and Victoria, the respondent said that he did not know nor had he taken any steps to inform himself. The Tribunal will impose a condition that the respondent be not registered in NSW until he satisfies the NSW Medical Board that he has sufficient knowledge of the relevant legislation and regulations relating to drug use by medical practitioners in NSW.
113 The Tribunal will impose conditions that the respondent notify the NSW Medical Board of any hospital at which he is to be employed in NSW, that he inform the Medical Director and Senior Anaesthetist in any hospital in NSW at which he is to be employed of his history of drug abuse, the fact that his registration has been the subject of conditions in the past and provide them with the reasons for decision of this Tribunal, that any change in his employment in NSW be notified to the NSW Medical Board and that the respondent nominate a professional mentor during the time that he is registered and working in NSW.
114 The conditions which the Tribunal will impose on his registration reflect its concern that the respondent remains vulnerable to relapse into drug abuse given the paucity of his insight and his inability to recognise for himself when he is placing himself in positions of danger with drugs, such as taking equipment containing a drug residue out of the operating theatre.
115 It was submitted for the respondent that if the Tribunal considered it appropriate to impose conditions on any future registration of the respondent in NSW, it make clear that the conditions apply only in NSW so that the Victorian Board would not impose those conditions through the reciprocity agreement. The Tribunal is of the view that the aspects of the respondent's conduct which lead it to impose conditions are such that the Victorian Medical Practitioners Board should have the advantage of considering whether or not to impose them in Victoria. In coming to that decision the Tribunal is conscious that, in the past, the respondent has successfully applied to the Victorian Board to remove conditions from his registration in Victoria notwithstanding that those conditions apply in NSW. Whether the Victorian Board accedes to any requests is a matter for it.
Orders
On finding that the respondent has, in each particular, demonstrated unsatisfactory professional conduct the Tribunal orders that any future registration of the respondent in NSW be subject to the following conditions;
1. That he not be registered in NSW until he has demonstrated to the satisfaction of the NSW Medical Board that he is aware of the relevant NSW legislation and regulations governing the administration and handling of drugs;
2. That he advise the NSW Medical Board of his place of employment and any proposed change of that employment within twenty-one (21) days before either commencing or changing the employment;
3. That the respondent advise the Medical Director and Senior Anaesthetist of any hospital in which he is employed in NSW of the fact of his past drug abuse, that his registration has been subject to conditions including random urinalyses and that he give to the Medical Director and the Senior Anaesthetist a copy of the Tribunal's orders;
4. That twenty-one (21) days before commencing clinical practise in NSW the respondent notify the NSW Medical Board of the name and professional address of a senior anaesthetist who is prepared to act as his professional mentor;
5. The respondent will consult the mentor for a period of two years from the date of his application for registration in NSW;
6. The nature and frequency of the contact between the respondent and the mentor is to be determined by the mentor in accordance with the Guidelines developed by the Medical Board of NSW;
7. The meetings between the mentor and the respondent will occur at least monthly and may be in person or by telephone at the convenience of the mentor and after discussion with the respondent and should be used to discuss any medical practice issues as they arise;
8. The respondent is to provide the mentor with a copy of the Reasons for Determination and Orders of the Tribunal;
9. The respondent is to authorise the mentor to report to the NSW Medical Board every six months about the fact of the contact with the respondent and to inform the NSW Medical Board if he/she has any concern about the respondent's professional conduct or personal wellbeing;
10. The respondent is to authorise the mentor to notify the NSW Medical Board of the respondent's failure to attend for consultation with the mentor, the termination of the mentoring relationship against the advice of the mentor or any other matter the mentor considers appropriate;
12. that the respondent pay the applicant's costs of the hearing.11. The respondent is to bear any costs associated with the mentoring process;
Endnotes
1 Annexure A, Amended Complaint
2 Exhibit C, letter Medical Practitioners Board of Victoria, 16th January 2007
3 Exhibit B, Section192A Certificate
4 Exhibit G
5 Exhibit B, see conditions imposed by the Medical Tribunal of NSW 20.8.2002
6 transcript Tribunal hearing, June 2002, page 117ff
7 Exhibit E, Statement of Agreed Facts, paragraph 5
8 transcript 19th June 2002 page 169 line 28
9 transcript 20th February 2007 page 67
10 transcript 20th June 2002 page 203 line 35
11 transcript 20th February 2007, page 87 line 29
12 transcript 19th June 2002 page 205 line 4
13 transcript June 2002 page 133 ff
14 Exhibit A tab 8A
15 Exhibit H
16 Exhibit A, tab 8C
17 Exhibit A tab 9A
18 transcript 20th June 2002 page 230 line 13
19 transcript 20th February 2007 page 553 line 34
20 transcript June 2002 page 230 line 25
21 transcript June 2002 page 232
22 transcript 20th February 2007 page 78 line 4
23 transcript June 2002 page 230 line 13
24 Exhibit 5
25 Exhibit J
26 transcript 20th February 2007 page 74 line 18 ff
27 transcript 20th February 2007 page 75 line 13
28 transcript 20th February 2007 page 75 line 38
29 transcript page 76 line 43
30 Statement of Agreed Facts, Exhibit E
31 Exhibit A, tab 8C
32 Exhibit D
33 Briginshaw v Briginshaw (1938) 60 CLR 336 . The Tribunal must be comfortably satisfied on the balance of probabilities but that having regard to the serious nature of the charge and the consequences, that satisfaction cannot be produced by "inexact proofs, indefinite testimony or indirect references".
34 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637D and F
35 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]
36 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA
37 transcript 20th February 2007 page 69 line 25 ff
ANNEXURE ‘A’
To the Reasons for Determination of and Orders of the Medical Tribunal of New South Wales
HCCC V Dale Lynton Schnapp
40012 of 2005
dated Thursday 5th April 2007
COMPLAINT
MEDICAL PRACTICE ACT, 1992
The Chairperson
Medical Tribunal
Goulburn St
SYDNEY NSW 2000
THE HEALTH CARE COMPLAINTS COMMISSION, of Level 13, 323 Castlereagh Street, Sydney, 2000 having consulted with the New South Wales Medical Board in accordance with section 51(1) of the Medical Practice Act, 1992 ("the Act") as amended by the Health Care Complaints Act, 1993.
HEREBY COMPLAINS that:
Dr Dale Lynton Schnapp of PO Box 2292, Caulfield 3162 in the State of Victoria ("the practitioner") being a medical practitioner registered under the Act,
COMPLAINT ONE
Is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Act in that he has:
a) demonstrated a lack of knowledge, skill, judgment or care in the practice of medicine; and/or
b) engaged in improper or unethical conduct relating to the practice of medicine.
PARTICULARS
Between 25 May 2001 and 26 September the practitioner was employed as an anaesthetist at Wagga Wagga Base Hospital ("the Hospital".)
5 On 13 September 2001 at the Hospital the practitioner transferred Propofol from a Diprifusor syringe into an ordinary syringe and sought to remove Propofol from the Hospital;
(a) contrary to the hospital guidelines concerning the disposal of unused medications;
(b) contrary to the instruction of the Medical Superintendent;
(c) with the intention of diverting the Propofol for his own use.
6 On 3 August 2001 the practitioner dealt with a Diprifusor syringe and a quantity of Propofol:
(a) contrary to the NSW Guidelines for the Handling of Medication in NSW Public Hospitals;
(b) with the intention of diverting Propofol for his own use;
9 On 13 September 2001 the practitioner inappropriately attempted to dissuade two members of nursing staff at the hospital from completing incident forms about his conduct.
Judge K.V. Taylor, AM RFD
Acting Commissioner
Health Care Complaints Commission
0
7
2