Health Care Complaints Commission v Dr Gow
[2008] NSWMT 2
•21 October 2008
New South Wales
Medical Tribunal
CITATION: HCCC v Dr Gow [2008] NSWMT 2 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Arthur Garry GowFILE NUMBER(S): 40011 of 2007 CORAM: Ainslie-Wallace, DCJ - Toh, Dr S - Messner, Dr S - Jackett, Mr D CATCHWORDS: Death of a patient - Professional misconduct LEGISLATION CITED: Medical Practice Act 1992
Medical Practice Regulation 2003
Poisons and Therapeutic Goods Regulation 2002CASES CITED: Quidwai v Brown [1984] 1 NSWLR 100;
Pillai v Messiter (no 2)(1989) 16 NSWLR 194DATES OF HEARING: 11.8.2008, 12.8.2008, 13.8.2008 DATE OF JUDGMENT: 21 October 2008 LEGAL REPRESENTATIVES: P Strickland SC instructed by the Health Care Complaints Commission
A Katzmann SC instructed by HWL Ebsworth LawyersORDERS: Conditions:; Pursuant to section 61(1)(c) of the Medical Practice Act, the following conditions are imposed on the respondent's registration; 1.The respondent not prescribe Schedule 8 medications for a period of 2 years; 2.the respondent is to continue to attend his treating psychiatrist at intervals determined by the psychiatrist; 3.the respondent is to notify the NSW Medical Board (the "Board") in the event that he changes his treating psychiatrist; 4.the respondent will authorise his treating psychiatrist to notify the NSW Medical Board if the respondent fails to attend, terminates treatment or if there is a significant change in the health of the respondent whether that change is temporary or otherwise; 5.at least six weeks before the respondent intends resuming practice he is to authorise the Board to arrange an assessment by a Board nominated psychiatrist.; Orders; 6.For the purposes of Part 6 Division 3 of the Medical Practice Act 1992 the appropriate review body is the Board; 7.These conditions may be varied, amended or removed at the discretion of the Board; 8.The respondent is to pay the costs of the applicant as agreed or assessed; Note; The Tribunal notes that it is the respondent's intention, should he resume practice, to have a graduated return to work, commencing by working no more than three days each week in the practice of Dr Etheredge.
JUDGMENT:
THE MEDICAL TRIBUNAL Tuesday 21st October 2008
OF NEW SOUTH WALES
AT SYDNEY
No. 40011 of 2007
BETWEEN
Health Care Complaints Commission
Applicant
Dr Arthur Garry GOW
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Dr Saw-Hooi Toh
Dr Susan Messner
Mr David Jackett
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 name of the patient referred to in the proceedings and in respect of the name of the patient's partner.
Introduction
1 The respondent is a medical practitioner, vocationally registered as a general practitioner. The complaint by the Health Care Complaints Commission (the applicant) arises from his treatment of one of his patients (referred to in these reasons as "the patient ").
2 On 22nd September 2004, when treating the patient for back pain, the respondent prescribed 5 ampoules of 120mg/1.5ml Morphine Tartrate for the patient. On 2nd October 2004 the patient injected himself with the contents of one ampoule and as a result, died of a morphine overdose.
3 There was no issue that it was inappropriate for the respondent to prescribe morphine with which the patient would inject himself nor that it was inappropriate for the respondent to write a prescription for the patient without any instruction about the amount to be taken or the period of time in which the drug was to be used. There was no issue that a patient who receives morphine, if it is used inappropriately without proper monitoring, can suffer respiratory depression, heart problems or death.
Complaint
4 The applicant brings 2 complaints that the respondent has been guilty of unsatisfactory professional conduct and/or professional misconduct as defined by the Medical Practice Act 1992 in that he has:
"1. 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 practitioner of an equivalent level of training or experience and/or
Contravened a provision of the Medical Practice Regulation 2003
2. Has been convicted of an offence in the State of New South Wales"
5 The particulars of the first complaint are that the respondent, in the course of treating the patient:
2. Failed to sufficiently explain to the patient the safe manner and dosage in which the morphine tartrate could be used."1. Mistakenly prescribed the patient with five morphine tartrate 120mg ampoules instead of morphine sulphate 15mg or 30 mg ampoules.
3. Prescribed a drug namely morphine tartrate the nature and quantity of which was inappropriate for
the patient's purported needs namely to control pain anticipated to occur during a proposed
flight to India and his medical condition, namely chronic back pain.
- 4. Inappropriately prescribed a Schedule 8 drug for unsupervised use, namely for self-administration to control pain anticipated to occur during a proposed flight to India.
5. Breached clause 77(1)(d) of the Poisons and Therapeutic Goods Regulation 2002 in that he issued a prescription for a drug of addiction, namely morphine tartrate without ensuring that the prescription contained adequate directions for use
6. Breached clause 1(2)(b) of Schedule 2 to the Medical Practice Regulation in that on 22 September 2004 he failed to record in the patient's clinical notes particulars of (a) any clinical opinion reached by the practitioner; and/or (b) any clinical or diagnostic reasoning behind the prescription of morphine tartrate; and/or (c) a treatment plan; and/or (d) dosage instructions.
7. Breached clause 2(2) of Schedule 2 to the Medical Practice Regulation 2003 in that he failed to
record in the patient's clinical notes on 22 September 2004 sufficient information
concerning the patient's case to allow another registered medical practitioner to continue
management of the patient's case.
6 The respondent admits all of the particulars of the complaints and admits that his conduct amounts to unsatisfactory professional conduct.
Background to the Complaint
7 The parties arrived at a set of agreed facts and some of the material concerning the background to the complaint is taken from that source.
8 The patient was aged 52 when he first consulted the respondent on 24th August 2004. Before that first consultation with the respondent, the patient had seen another general practitioner on 28th July, 20th August and 6th September 2004. At the 28th July consultation with the first general practitioner, the patient complained that he had a back injury which occurred some time before and which caused him pain. He told the general practitioner that in the past he had been prescribed Panadeine Forte and codeine for his back pain.
9 In the consultations between the patient and the general practitioner, the patient asked to be given pethidine or morphine injections. These requests were refused. The patient told the general practitioner that he was planning a trip to India and was concerned about having back pain during the flight.
10 At a consultation on 6th August, the patient injected himself with a hepatitis vaccine in the presence of the general practitioner, and again on 20th August injected himself with typhoid vaccine, apparently in an attempt to convince the general practitioner that he was capable of administering morphine to himself.
11 The patient consulted the respondent on three occasions, 24th August, 1st September and 22nd September 2004.
12 On the first consultation on 24th August, the respondent took detailed notes of the patient's history and presenting complaints. The patient told him that he suffered from back pain because of a ruptured disc in his lower back. The respondent said that at this first consultation, the patient demanded that he be given morphine to control his back pain. The patient told the respondent that in the past he had been given an injection of Pethidine for his back pain but it had been ineffective to relieve his pain. The patient informed the respondent that he was able to give himself injections. The respondent refused the patient's request for morphine. The respondent said that he was surprised at the patient's request or "demand" as he termed it because he knew nothing of the patient and would not countenance prescribing such a drug for the patient.
13 The patient returned to see the respondent on 1st September 2004. The respondent said that in this consultation the patient complained that he experienced quite severe back pain a lot of the time. At the conclusion of the consultation the respondent prescribed some homeopathic medicine for the patient's back pain.
14 The final consultation was on the 22nd September 2004. There are but three lines recording the consultation:
"ars30
podo 30
morphine tartrate 5 120mg"
15 The "ars" is a reference to arsenic aulbunen and "podo" is podophyllum both homeopathic remedies for traveller's diarrhoea. The respondent said that the patient told him that the homeopathic medicine prescribed for him on the previous consultation had given him no relief from his back pain. He told the respondent that he and his partner were planning a trip to India and he was worried about managing his back pain during the flight. The patient told the respondent that he "needed " morphine.
16 In this last consultation, the respondent agreed to prescribe morphine for the patient. He said that he intended to prescribe morphine sulphate but instead prescribed morphine tartrate in 5 ampoules of 120mg and added to the prescription the letters "mdu" , an abbreviation for " as directed by the doctor ". The respondent told the patient that this was very strong medicine and was only to be used for the flight to India.
17 The patient attended a local pharmacy which had no stock of morphine tartrate and had to order it in. The drug was dispensed to the patient on 29th September 2004. When the drug was dispensed, the patient told the pharmacist that he had been given directions from the respondent as to how the drug was to be used and that he understood those directions. The pharmacist did not seek any further information from the patient about the directions for administration of the drug. She also supplied the patient with syringes.
18 On 2nd October, according to the patient's partner, the patient was at home and complained of extreme back and neck pain which had been unrelieved by a 2 hour massage and a long bath. At about 7pm the patient told his partner that he was going to try to relieve the pain by using the morphine. His partner saw that each ampoule of morphine contained 120 mg and she told him that it was stronger than Pethidine. She opened one ampoule and filled a syringe with 7/8 of an ampoule. The patient injected the morphine into his left thigh. Shortly afterwards he said that he felt the drug beginning to work. The patient went to bed and died in the night of a morphine overdose.
19 The patient's partner rang the respondent to inform him of the patient's death. The respondent said that until she told him that the patient had died of a morphine overdose, he did not have "the faintest idea" that the patient's death was linked to morphine nor that he had prescribed it for him. The respondent said that he did not believe that he had until he went and checked his notes and said:
"When I saw my notes and realised that I had written that prescription I was horrified. I had no recollection of prescribing morphine let alone morphine tartrate and was aghast to see the size of the dose. I genuinely believed that no general practitioner in his right mind would have prescribed morphine tartrate 120mg."
Proceedings
20 The respondent was charged with manslaughter consequent on the patient's death and stood trial in August 2006. During the trial, the respondent pleaded guilty and was convicted on 27th October 2006. He was sentenced to imprisonment of 18 months with a non-parole period of 12 months. The whole of the sentence was suspended.
21 On 19th August 2005, after the respondent had been charged with manslaughter he appeared before an inquiry convened pursuant to section 66 of the Medical Practice Act 1992. At the end of the inquiry the delegates decided that it was unnecessary to impose any restrictions on the respondent's right to practice medicine. A second Section 66 Inquiry was held on 4th September 2006 after the respondent had pleaded guilty to the criminal charge. At the conclusion of that inquiry, on the recommendation of the delegates, the Medical Board imposed conditions on the respondent's right to practice medicine in that he was not to possess, supply, administer or prescribe Schedule 8 drugs of addiction.
Respondent's Background
22 The respondent studied medicine at Sydney University and graduated in 1977. He worked as an intern and then as a resident medical officer at the Royal Newcastle Hospital. In 1982 he returned to Sydney where he worked as a resident medical officer in obstetrics at Crown Street Women's Hospital and was awarded a Diploma in Obstetrics by the Royal Australian College of Obstetrics and Gynaecology.
23 The respondent has had a long-standing interest in homeopathic medicine and has undertaken study in that field.
24 In 1989 he moved to the Illawarra area and he eventually set up his own practice in Wollongong where in conjunction with other therapists, he practised holistic and natural therapies as well as conventional medicine. The respondent's patients were given the choice of being treated with either natural or conventional therapies or both.
25 The respondent estimated that in 2004, his patient base was between 300 and 400 patients. It was the respondent's common practice to conduct lengthy consultations with patients and take very detailed notes of each consultation.
26 The respondent said that he rarely prescribed opiates for patients and on any occasion that he did, said that it was on the instruction of palliative care specialists who were caring for his patients. He had never before prescribed morphine tartrate and prescribed morphine sulphate so rarely that he could not recall the last occasion.
27 After being charged with manslaughter the respondent reduced the size of his practice and saw only a small number of patients. He chose to stop prescribing Schedule 8 drugs and at the time the Medical Board directed him to relinquish his rights, he was only prescribing a Schedule 8 drug to one patient. The respondent took on no new patients from October 2006 but continued to see existing patients.
28 For many years the respondent had been working a couple of days each week with a vascular physician, Dr Stephen Etheredge who practises in Wollongong. His role in that practice was to see patients who attended for appointments with Dr Etheredge and to conduct a preliminary assessment in which he was required to take a detailed medical history, administer tests and provide the result to and discuss them with Dr Etheredge as part of the physician's consultation with the patients. He resumed working with Dr Etheredge in September 2006 with the approval of the Medical Board.
29 In April 2007 after a period of illness, the respondent was diagnosed with Multiple Myeloma a progressive disease of the blood and bone marrow. It has a poor prognosis. In optimal conditions, patients can expect to survive 5 years from diagnosis. He received treatment including stem cell transplant in October 2007 and the progress of his disease remitted. In July 2008 the respondent learned that he had relapsed. He is presently receiving treatment but it is not known whether this will lead to a further remission. His specialist haematologist, Professor Cartwright, believes that a relapse so soon after stem cell therapy does not bode well for the respondent. The respondent will need significant medical intervention over the next few years. It was suggested that his life expectancy with this disease is 18 months depending on his response to the treatments to be administered to him in the coming months.
30 When the respondent learned of his relapse he stopped working with Dr Etheredge and is not presently working. He hopes, if his health improves, to resume work with Dr Etheredge and perhaps have a graduated but limited return to general practice.
Psychiatric Evidence
31 In 2006 the respondent was referred by his general practitioner to Dr Michael Diamond, a psychiatrist.
32 Dr Diamond said that at the time he first saw the respondent in September 2006, the respondent exhibited severe depression with accompanying melancholia. He said that the most striking feature of the respondent's presentation was the presence of severe pathological guilt. Dr Diamond prescribed an anti-depressant medication for the respondent which gave him some improvement in his mood.
33 Dr Diamond has continued to treat the respondent. In his report of January 2008, Dr Diamond said that the respondent currently showed no evidence of psychiatric illness although he remains vulnerable to a recurrence of the depressive illness.
34 Dr Diamond believed that in 2004 when the respondent was treating the patient, he was suffering from a significant psychiatric illness which had come on " insidiously " and which affected his judgment and his practice of medicine.
35 In the years before 2004 the respondent had been under significant pressure in trying to care for his elderly, frail mother who was difficult and extremely demanding. While it is not necessary to outline all of the circumstances existing at the time, the respondent and his family decided to care for his mother close to where they were living. He purchased a nearby house that needed renovation and extension before he and his wife and child could move in with his mother. There were protracted delays in the building and, in the result, the respondent left his family and virtually moved in to live with his mother to care for her when it was clear that she could not care for herself even with home help.
36 Dr Diamond read a statement of the respondent's wife in which she reflected not only on the pressure that these circumstances imposed on the respondent but how he appeared at the time. Dr Diamond said that this statement was:
"…a powerful corroborative statement from somebody who is living with the respondent at the time and it corroborates the diagnostic position that I reached in terms of giving very clear description of a profound shift in his mood, his demeanour, a difference in his normal personality functioning, his state of withdrawal from family activities and a description of the features that one would associate with the diagnosis of major depressive disorder with melancholia".
37 Dr Diamond said that at the time of the respondent's treatment of the patient in September 2004, he was undoubtedly impaired because of an undiagnosed, unrecognised and untreated major depressive disorder.
38 When asked to consider how this conclusion was consistent with there being no criticism of the way in which the respondent managed the first two consultations with the patient or indeed in his consultations with his other patients at the time, Dr Diamond said (transcript page 119.29):
" My observation of really quite seriously unwell and depressed patients is that very often they preserve their ability to function in their core area of expertise or comfort really to quite a late stage of severe illness. So my understanding of what he did in the first two consultations was that he did what he always did, he saw somebody who complained of a medical ailment and he treated him in accordance with what he was accustomed to doing and he carried out his assessments that way and he proposed a management path that was in keeping with what was his normal was of practising. So as far as what he did on those first two consultations, I would have seen him doing that day in and day out in what, to him would have been a normal way. In fact, it was maybe the last preserved vestige of his normal functioning".
39 Dr Diamond said that it was at the last consultation with the patient, when the respondent felt under pressure and uneasy with the patient's coercive demands for injectable morphine, that he believed that the respondent capitulated and felt that he could no longer withstand the patient's demands for a narcotic and he wrote a prescription for a drug that he had never prescribed before. Dr Diamond believed that the pressure placed on the respondent by the demands of the patient were very similar to the pressures he was experiencing with his mother:
"...who didn't want to do what he was trying to do, who wouldn't comply with his attempt at helping her and was ungrateful and reluctant to be appreciative of what he was trying to do...".
40 In reflecting on the state of the respondent's mind at the time, Dr Diamond said:
"But for his state of severe depression and all of the effects that that had on him, I do not believe that the respondent has shown at any other time in his medical career that he has made decisions of this nature that are so out of character with his normal practice. I think he made a terrible error in a highly compromised state and the compromise resulted from his illness."
41 Dr Diamond discussed with the respondent the circumstances in which he came to prescribe morphine tartrate for the patient with the respondent who told him that it was hard for him to understand how he could have made that mistake. He told Dr Diamond that in the past when he had prescribed opiates for patients, it was always according to the schedules of the palliative care specialist for the particular patient and he had always prescribed oral narcotics. He could not recall an instance when he had initiated narcotic treatment for a patient and had no experience or routine for the prescription of narcotics. During this conversation the respondent told Dr Diamond that he felt: " as helpless with the patient as he felt with his problems with his mother ". He said that his mind was not clear, he wasn't sure and felt uneasy. The respondent said (of the patient): " he wanted injectable morphine " and he recalled looking in MIMS and feeling flustered and uneasy. The entries for morphine sulphate and morphine tartrate were right next to each other in MIMS but the respondent said that he could not see the entry for morphine sulphate. He said: "I can't explain it, it was like a blind spot" he added that his recollection of what happened varies and sounds " odd" .
42 Dr Diamond said that this description of events was suggestive of a dissociative state as is described by people who are feeling very distressed and very pressured. Dr Diamond said that what struck him in the respondent's account of the circumstances is that he felt very flustered, very distressed and he felt quite detached and he still feels unsure about what he did. Dr Diamond said that people who find themselves in a helpless position react by cutting off the very distressing emotions so that there is: "instead of strong emotion feeling, actually a state of numbness and I think he was describing that quite naively".
43 None of this evidence was challenged. It was also accepted that, but for the egregious errors committed by the respondent in the consultation of the 22nd September 2004 with the tragic consequences for his patient, he has practised medicine in an exemplary manner. Many, many testimonials of support and in praise of the respondent, not only from patients but from colleagues who had observed his work or worked with the respondent, were in evidence. Dr Etheredge had nothing but praise for the careful, efficient and humane way in which the respondent had dealt with patients in his practice.
44 Since being under Dr Diamond's care, the respondent's emotional condition has improved although Dr Diamond says that he is still depressed and that the respondent remains vulnerable to a further period of depression. Dr Diamond expressed concern that the respondent may not himself be able to identify the signs of a return to the depression. However he said that his role as the respondent's treating psychiatrist is to monitor his emotional state as an external, objective view and offer the respondent advice and medication if Dr Diamond thought it prudent. Dr Diamond said that he had no doubt that the respondent would accept and act on his advice and had done so in the past.
45 Since the respondent was informed of the relapse of the Multiple Myeloma he has chosen to stop taking the antidepressant medication because it interfered with his meditation which he uses as an adjunct to other treatment. Dr Diamond accepts this position, however, he said that should the respondent feel well enough to resume work as a doctor and Dr Diamond thought that his emotional condition dictated a return to the anti-depressant, he would insist that the respondent resume the medication. The respondent said that he would accept and comply with that advice.
46 The respondent is presently being treated for the Multiple Myeloma. He sees Professor Cartwright every 4 weeks and Dr Diamond at roughly the same interval. At his last consultation with Professor Cartwright she recommended to him that he consider retiring from work because of his relapse and the initiation of further, intensive treatment. The respondent accepted that if his condition improved sufficiently for him to feel like resuming work, he would inform Professor Cartwright and accept her decision as to whether he was well enough.
47 The respondent has no present intention of returning to work and any return would be graduated. He does not foresee returning to full time general practice.
48 There is no doubt that the respondent is genuinely and deeply remorseful. In his statement to the Tribunal he said:
"I am deeply ashamed of what I did. I will never forget it and I will always be haunted by it. I cannot conceive of any circumstances in which I would ever act in a similar way again."
49 In his judgment on sentence, the trial judge said (after commenting on the respondent's expressions of remorse):
"...(the respondent) admitted his mistakes when giving evidence and did not try to justify them in any way. This factor demonstrates clearly what is obvious from other material, namely that (the respondent) is a man of impeccable character, who is deeply ashamed of his mistake and who recognises the gravity of his error."
50 The Tribunal finds that the respondent is truly contrite and ashamed of his conduct. The Tribunal also finds that the respondent is a man of impeccable character.
Peer Review
51 Dr Jeremy Bunker a general practitioner was engaged to consider the actions of the respondent and express an opinion. He said that the prescription of morphine tartrate:
"...in an inappropriate dose, for inappropriate indications and with inadequate information for the patient and with inadequate documentation led him to the conclusion that the respondent had departed from the standards reasonably expected of a practitioner of equivalent level of training or experience".
52 By " inappropriate indications " Dr Bunker said that he meant that it was inappropriate to prescribe parenteral narcotics to a patient for self-administration, that the patient had not been given instructions to enable him to administer the drug safely and that it appeared to him that the patient did not know how much of the drug to take. In his report, Dr Bunker said that the respondent's conduct fell significantly below the standard reasonably expected of a practitioner and attracted his " strong " criticism. He said that in a continuum of criticism, " strong" fell to the "right of moderate and before you get to severe ".
53 Dr Bunker agreed that in considering whether the respondent's conduct demonstrated an ignorance of the basic rules of professional practice and constituted serious incompetence, it was important to determine whether the conduct was an:
"...isolated, solitary series of mistakes contributed to by an intercurrent mental health problem or whether it was a part of a pattern of wider difficulties with consulting and practising safely."
54 He said that in assessing the respondent's conduct and the level of criticism it would attract from the respondent's peers, he had only considered the objective circumstances of the third consultation between the respondent and the patient.
55 He agreed that it appeared that the conduct of the respondent in that consultation was isolated and an extraordinary departure from the respondent's practice and that fact would, if taken into account by him, operate to moderate the level of his criticism of the respondent's actions. Equally, if he took into account that the respondent's conduct was in large part attributable to an undiagnosed, untreated mental illness his criticism would: " retreat from strong towards moderate ". He agreed that his fellow practitioners of good repute and competence would not regard the errors of the respondent as constituting " dishonourable or disgraceful " conduct if they were explained by the presence of an undiagnosed mental illness.
Discussion
56 There was no dispute that in the third consultation with the patient, the respondent made a number of serious errors with fatal consequences. He prescribed an inappropriate medication, morphine tartrate appropriate only for use in patients in the terminal stages of cancer. The patient was not such a patient. The amount of morphine tartrate prescribed, 120mg could be (and in this case was) fatal if taken at once. The respondent did not intend to prescribe morphine tartrate, he intended to prescribe morphine sulphate and intended to prescribe an amount of 15mg. He did not recognise when consulting MIMS that he was looking at the wrong drug. The respondent prescribed the morphine for self-administration and gave the patient no instruction about how much drug to use, did not tell the patient that he should not use the whole ampoule nor did he instruct the patient how the drug was to be administered. His note of this consultation was inadequate.
57 The respondent admitted that his conduct amounted to unsatisfactory professional conduct. The issue between the parties is whether the respondent's conduct amounted to professional misconduct.
58 The Medical Practice Act 1992 defines unsatisfactory professional conduct in section 36 as follows:
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;
(c) Any other improper or unethical conduct relating to the practice or purported practice of
medicine.
59 Professional misconduct is defined in section 37:
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."
60 It was common ground that a Tribunal may make a finding that a practitioner was guilty of professional misconduct without ordering that his name be removed from the Register or that he be suspended. It was also common ground that neither of those orders was necessary or appropriate to the circumstances of the case.
61 The applicant argued that the Tribunal would find that the practitioner was guilty of professional misconduct if it was satisfied either that the practitioner's conduct was grossly negligent or the conduct was such that it incurred the strong reprobation of another practitioner of good repute and competence. It was argued that the words " sufficiently serious " mean that to amount to professional misconduct, the Tribunal would need to be satisfied that there was " significant objective gravity " in the respondent's conduct.
62 Both of these tests derive from cases in which the court was considering, whether conduct was "misconduct in a professional respect". In Qidwai v Brown [1] the court found that " misconduct in a professional respect " was conduct that would incur the strong reprobation of colleagues of good repute and competence. The court accepted that a finding that conduct amounted to misconduct need not involve moral turpitude. In Pillai v Messiter [2] misconduct in a professional sense was found to be more than negligence or incompetence. The court held that if conduct amounted to gross negligence it might amount to misconduct in a professional sense if it was accompanied by indifference to rudimentary professional requirements or a deliberate departure from accepted standards of practice.
63 The applicant argued that the terms of section 37 and its reference to unsatisfactory professional conduct requires a Tribunal, when assessing whether conduct amounts to professional misconduct, to make an objective assessment of the practitioner's conduct measured against the standard of peer conduct. The assessment of the conduct is not to be considered in isolation and the Tribunal may properly take into account circumstances relevant to the conduct. In this case, the applicant said that relevant circumstances that may be taken into account in making the determination are that the conduct was isolated both as to the respondent's practice and in the consultations with the patient, that the conduct was not committed through indifference nor was it a deliberate departure from professional standards. It was also conceded that the Tribunal may take into account that at the time of the acts the doctor's will was overborne by the demands of the patient for drugs but only to the extent that a practitioner who was not suffering from depression may comply with the demands of such a patient.
64 In arguing for a finding of professional misconduct, the applicant said that the doctor's plea of guilty to and conviction for manslaughter speaks to the degree of his negligence and his acceptance that it warranted criminal punishment.
65 The respondent argued that the words " sufficiently serious " allowed the court to consider whether the conduct was attended by a mental element of indifference to or disregard of professional requirements or amounted to an abuse of the privileges that accompany registration as a medical practitioner such as to be considered dishonourable or disgraceful conduct.
66 The respondent submitted that in circumstances such as this case where there was no suggestion of " dishonourable " conduct in the sense that it was disgraceful or dishonourable nor was it suggested that the acts had been accompanied by indifference or a recklessness to the obligations of his profession, the Tribunal would not find that the doctor was guilty of professional misconduct.
Conclusion
67 The determination of whether a practitioner has been guilty of unsatisfactory professional conduct pursuant to section 36 , involves an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner. By its terms, section 37 in defining professional misconduct, refers to conduct that falls significantly short of the standard referred to in section 36 and concerns itself with the measure of the seriousness of that conduct. The Tribunal is satisfied that the determination of whether conduct amounts to professional misconduct has as its starting point, an objective assessment of the practitioner's conduct against the standard. The Tribunal is of the view that in coming to a decision about whether conduct is " sufficiently serious " to justify the sanction of de-registration, circumstances which bear on that objective assessment of that conduct may properly be taken into account.
68 However, not every circumstance will have that character and the line between circumstances that are relevant to an assessment of the nature of the conduct and those which bear on protective orders will not always be clear.
69 In this case, the Tribunal has taken into account the fact that the conduct (or series of acts) was isolated in the doctor's practice and in the consultations that the doctor had with the patient, that the conduct was not as a result of indifference nor was it calculated. The Tribunal has also taken into account that this patient was different from the doctor's usual patients in that he was demanding and difficult and made constant demands for parenteral narcotics.
70 The respondent's conduct, even taking into account that it was truly isolated in his practice, nevertheless warranted reprobation from Dr Bunker speaking for the respondent's peers, that was less than strong but more than moderate.
71 Taking those matters into account, the nature of the conduct and that it reflects a series of egregious errors has comfortably satisfied the Tribunal that it amounts to professional misconduct. In coming to that decision the Tribunal is mindful that the plea of guilty to the charge of manslaughter was an acknowledgment by the doctor that his conduct fell so far short of the standard reasonably expected from him in the circumstances that it warranted criminal punishment. That gross negligence, of which the Tribunal is also satisfied albeit not accompanied by indifference nor reflecting an abuse of the privileges accompanying the right to practise, is conduct which of its nature is sufficiently serious to amount to professional misconduct.
72 The Tribunal thus is satisfied to the requisite standard that the respondent's lack of care, skill and judgment was such that it amounted to professional misconduct.
73 The respondent is not currently practising and is in poor health. He would like to retain the option to return to practice in some limited way and in a structured return, if his health permits.
74 The Tribunal is of the view that in all of the circumstances, should the respondent return to practice, there is no prospect of him repeating the conduct which brought him to the Tribunal. In making this finding the Tribunal has taken into account that up until September 2004 the respondent had practised medicine in an unblemished way, earning the respect and admiration of his colleagues and patients. The respondent's capacity to function in his usual way had been impaired by the development of the depressive illness. He has received appropriate treatment and his condition and ongoing vulnerability is monitored. He has sufficient insight into his conduct and his psychiatric state that he will accept and abide by advice from Dr Diamond if it is necessary for his health to take medication. In all of these circumstances, the Tribunal is confident that the tragic events of the 22nd September will not be repeated should the respondent return to the practice of medicine.
75 The Tribunal does not believe that it is necessary to impose any restrictions on the respondent's return to practice. He has said that he does not wish the right to prescribe Schedule 8 drugs. The Tribunal is of the view that the respondent's right to prescribed Schedule 8 drugs should not be returned until a period of 2 years has elapsed from the date of his return to work as a general practitioner.
76 The Tribunal was concerned that the respondent should only return to practice if his health permitted it and proposed that any return to practice should be only with the approval of Professor Cartwright and Dr Diamond. During the course of argument on the continuation of the interim suppression order made before the hearing commenced (see separate judgment), a further report of Professor Cartwright was tendered which amplified a comment made in an earlier report in which she noted that she had recommended the respondent consider "medical retirement". In her later report, she explained that this recommendation arose from her experience with people with this condition and its grim prognosis - she said:
"I have not encountered a single dying patient who wished they had worked harder or had helped one more client. They regret that they did not spend more time with their family or that they failed to take a special holiday. So it is with this in mind that I recommended (the respondent) consider medical retirement. I have no concerns that (the respondent) would practice medicine if he was medically unfit to do so."
77 In the light of that report and the proposed order that before re-commencing practice the respondent will submit to a psychiatric examination by a Board nominated psychiatrist, that the Tribunal revised its conclusion in the draft reasons.
78 The Tribunal is confident that if either of the respondent's treating doctors was of the view that his health was such that it was not appropriate for him to work as a doctor and advised him of that view, the respondent would not act against the advice.
79 As there was to be a delay in the completion of the hearing through illness of one of the Tribunal members, the legal representatives of both the applicant and respondent were informed of the Tribunal's conclusion that no order for the doctor's suspension or de-registration would be made and this was to be conveyed to the doctor.
80 The Tribunal therefore proposes to make the following conditions and orders in relation to the matter.
Conditions:
Pursuant to section 61(1)(c) of the Medical Practice Act, the following conditions are imposed on the respondent's registration:
1. The respondent not prescribe Schedule 8 medications for a period of 2 years;
2. the respondent is to continue to attend his treating psychiatrist at intervals determined by the psychiatrist;
3. the respondent is to notify the NSW Medical Board (the "Board") in the event that he changes his treating
psychiatrist;
4. the respondent will authorise his treating psychiatrist to notify the NSW Medical Board if the respondent fails to
attend, terminates treatment or if there is a significant change in the health of the respondent whether that change is
temporary or otherwise;
5. at least six weeks before the respondent intends resuming practice he is to authorise the Board to arrange an
assessment by a Board nominated psychiatrist.
Orders:
6. For the purposes of Part 6 Division 3 of the Medical Practice Act 1992 the appropriate review body is the Board.
7. These conditions may be varied, amended or removed at the discretion of the Board.
8. The respondent is to pay the costs of the applicant as agreed or assessed.
Note
The Tribunal notes that it is the respondent's intention, should he resume practice, to have a graduated return to work, commencing by working no more than three days each week in the practice of Dr Etheredge.
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Endnotes
1 [1984] 1 NSWLR 100
2 Pillai v Messiter (No 2) 16 NSWLR 194
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