Health Care Complaints Commission v Dr Roland Von Marburg
[2012] NSWMT 5
•08 May 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Roland Von Marburg [2012] NSWMT 5 Hearing dates: 6, 7 March 2012 Decision date: 08 May 2012 Before: Kavanagh J; Dr W Johnston; Dr P Tucker; Ms D Robinson Decision: The Tribunal makes the following orders:
1.Dr Von Marburg is guilty of unsatisfactory professional conduct and professional misconduct in that, in the exercise of his medical practice, his knowledge, skill, judgement and care were significantly below the standard expected of a practitioner; he breached the Medical Practice Act 1992 and he engaged in improper and unethical conduct.
2.We, therefore, order the following conditions will apply in Dr Von Marburg's practice of medicine:
CONDITIONS
Practice Conditions
1.Dr Von Marburg to advise the Medical Council of New South Wales (the Council) prior to changing the nature or place of his practice.
2.Dr Von Marburg must not prescribe, possess, supply, administer, handle or dispense any drug of addiction (drugs under Schedule 8 of the New South Wales Poisons List). In order to comply fully with this condition:
(i) He must ensure his authorities as a medical practitioner under the provisions of the Poisons and Therapeutics Regulation 2008 to prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) are withdrawn and remain withdrawn.
(ii) Any subsequent change in his Schedule 8 authority must be in accordance with the Council's protocol. Prior to the submission of any variation application to the Pharmaceutical Services Branch, he must seek and obtain approval of the Medical Council of NSW to the lifting of this condition and to the re-instatement of any prescribing authority. (see note)
3.Dr Von Marburg is to authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia and/or the Pharmaceutical Services Branch of the NSW Health Department where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
Health Conditions
4.Dr Von Marburg is not to prescribe for self-medication.
5.Dr Von Marburg is not to self administer:
(a) any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act 1985
(b) any narcotic derivative,
(c) any non prescription compound analgesic or cold medication.
Such medications should only be prescribed and taken at the directions of his treating practitioners.
6.Should Dr Von Marburg be prescribed or directed to take a
(a) substance detailed in Schedule 4 or 8 of the NSW Poisons List,
(b) narcotic derivative
(c) non prescription compound analgesic or cold medication.
Dr Von Marburg must provide to the Medical Council within seven days written confirmation of such treatment from the treating practitioner.
7.Dr Von Marburg is to attend for treatment by a psychiatrist of his choice, experienced in the treatment of drug addiction, at a frequency to be determined by Dr Von Marburg and the treating psychiatrist. The doctor is to authorise his treating practitioner to inform the Medical Council of New South Wales of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary chance).
8.The doctor is to attend for treatment by a counsellor of his choice, experienced in the treatment of drug addiction, at a frequency to be determined by Dr Von Marburg and the treating counsellor. The doctor is to authorise his treating counsellor or inform the Medical Council of New South Wales failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
9.The doctor is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Von Marburg and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of New South Wales of failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
10.The doctor is to continue taking any medication prescribed by his treating practitioners.
3.The respondent shall pay the complainant's costs.
Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT, PROFESSIONAL MISCONDUCT - Doctor self administered pethidine, a Schedule 8 drug - doctor had access to drugs through over prescribing for patients - failure to keep proper medical records; clinical records and drug diary of some seven patients used to hide addiction - clinical records reveal deceit and dishonesty - doctor complied with programme under Impaired Doctor's Programme - doctor guilty of unsatisfactory professional conduct and professional misconduct - limitation continued on doctor's power to prescribe Schedule 8 drugs - limitation placed on doctor's practice of medicine - appointment of a supervisor to monitor future practice - orders - rejection of application for suppression order of doctor's name - suppression order on names of patients - costs Legislation Cited: Health Care Complaints Act 1993
Health Practitioner Regulation National Law (NSW) No 86a
Medical Practice Act 1992Cases Cited: Buttsworth v Walton, NSW Court of Appeal, Unreported, 19 December 1991
Childs v Walton, NSW Court of Appeal, Unreported, 13 November 1990
Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Law Society of New South Wales v Bannister (1993) 4 LPDR 24
Law Society of New South Wales v Walsh (NSW Court of Appeal, Unreported, 15 December 1997)
Walton v Momot [1997] NSWCA 334Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Roland Von Marburg (Respondent)Representation: Mr L Fernandez of counsel (Complainant)
Mr M Lynch of counsel (Respondent)
Health Care Complaints Commission (Complainant)
Holman Webb (Respondent)
File Number(s): MT40013 of 2011
DECISION
The Health Care Complaints Commission ("the Complainant") brings before the Tribunal two amended complaints brought following consultation with the Medical Council of NSW ("the Council") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") against Dr Roland Von Marburg ("the respondent") being a medical practitioner registered under the Act.
The first complaint alleges, in the following terms, that the respondent:
Has been guilty of unsatisfactory professional conduct within the meaning of section139B of the National Law, in that he has:-
(i)engaged in conduct that demonstrates 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
(ii)engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
Particulars of Complaint 1 are as follows:
At all relevant times the practitioner was a specialist Ear, Nose, Throat, Head and Neck surgeon in private practice and a Visiting Medical Officer at Albury Wodonga Private Hospital and Wodonga Regional Health Centre.
1.Between about April 2008 and August 2008, the practitioner self administered a schedule 8 drug of addiction (between 60 to 80 ampoules 100mg/2ml pethidine) where the administration of that drug was not for the purposes of medical treatment, . . . and clause 101 of the Poisons & Therapeutic Goods Regulation 2002.
2.Between about April 2008 and August 2008, the practitioner failed to keep a drug register recording his receipt, supply and administration of schedule 8 drugs of addiction (pethidine and morphine), in contravention of clause 111 and clause 112 of the Poisons and Therapeutic Goods Regulation 2002.
3.Between about March 2008 and August 2008, the practitioner destroyed a schedule 8 drug of addiction (approximately 59 ampoules 100mg/2ml pethidine) in contravention of clause 123 of the Poisons and Therapeutic Goods Regulation 2002.
4.Between about July 2008 and August 2008, the practitioner destroyed a schedule 8 drug of addiction (approximately 10 ampoules 30mg/1ml morphine) in contravention of clause 123 of the Poisons and Therapeutic Goods Regulation 2002.
5.On about 22 August 2008, in an interview with officers of the Pharmaceutical Services Branch of the Department of Health, the practitioner falsely stated that he had not self-administered pethidine between about March 2008 and August 2008.
6.Between about October 2007 and November 2008, the practitioner failed to make a proper record in accordance with the requirements of schedule 2 of the Medical PracticeRegulation 2003, in respect of patients referred to in Schedule One.
7.Between about April 2008 and August 2008, the practitioner administered pethidine to the patients referred to in Schedule Two:-
(a)Without exercising responsible medical judgment as to whether it was appropriate in the circumstances to administer pethidine;
(b)In a quantity that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances;
(c)retained left over amounts of pethidine that had been prescribed for patients listed in Schedule 2 for his own use.
The second complaint alleges, in the following terms, that the respondent:
Has been guilty of professional misconduct within the meaning of s.139E of the National Law, in that he has (a) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (b) engaged in more than one instance of unsatisfactory professional conduct that when considered together is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, namely:-
(i)engaged in conduct that demonstrates 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
(ii)engaged in improper or unethical conduct relating to the practice or purported practice of medicine
Particulars of Complaint 2 are as follows:
At all relevant times the practitioner was a specialist Ear, Nose, Throat, Head and Neck surgeon in private practice and a Visiting Medical Officer at Albury Wodonga Private Hospital and Wodonga Regional Health Centre.
1.Between about April 2008 and August 2008, the practitioner self administered a schedule 8 drug of addiction (between 60 to 80 ampoules 100mg/2ml pethidine) where the administration of that drug was not for the purposes of medical treatment, and was contrary to s12(1) of the Drug Misuse and Trafficking Act 1985 and clause 101 of the Poisons & Therapeutic Goods Regulation 2002.
2.Between about April 2008 and August 2008, the practitioner failed to keep a drug register recording his receipt, supply and administration of schedule 8 drugs of addiction (pethidine and morphine), in contravention of clause 111 and clause 112 of the Poisons and Therapeutic Goods Regulation 2002.
3.Between about March 2008 and August 2008, the practitioner destroyed a schedule 8 drug of addiction (approximately 59 ampoules 100mg/2ml pethidine) in contravention of clause 123 of the Poisons and Therapeutic Goods Regulation 2002.
4.Between about July 2008 and August 2008, the practitioner destroyed a schedule 8 drug of addiction (approximately 10 ampoules 30mg/1ml morphine) in contravention of clause 123 of the Poisons and Therapeutic Goods Regulation 2002.
5.On about 22 August 2008, in an interview with officers of the Pharmaceutical Services Branch of the Department of Health, the practitioner falsely stated that he had not self-administered pethidine between about March 2008 and August 2008.
6.Between about October 2007 and November 2008, the practitioner failed to make a proper record in accordance with the requirements of schedule 2 of the Medical PracticeRegulation 2003, in respect of patients referred to in Schedule One.
7.Between about April 2008 and August 2008, the practitioner administered pethidine to the patients referred to in Schedule Two:-
(a)Without exercising responsible medical judgment as to whether it was appropriate in the circumstances to administer pethidine;
(b)In a quantity that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances;
(c)retained leftover amounts of pethidine that had been prescribed for patients listed in Schedule 2 for his own use.
Two schedules were attached to the complaint in respect of the relevant patients' names and the particulars of each breach.
Section 144 of the Health Practitioner Regulation National Law (NSW) No 86a relevantly states:
144 Grounds for complaint about registered health practitioner [NSW]
The following complaints may be made about a registered health practitioner-
(a) Criminal conviction or criminal findingA complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
Dr Von Marburg has no criminal conviction or criminal finding. He has admitted the particulars of complaint one and two but sought that those admissions be solely directed to the fact that the doctor admitted he self administered a scheduled drug, in the relevant period, in breach of the Poisons and Therapeutic Goods Regulation 2002. The Tribunal accepts that the admissions should not reflect that the doctor admits to either a conviction or a finding of a criminal offence. Given the wording of s 144 of the Health Practitioner RegulationNational Law and the submission as to the admissions made by the doctor, the Tribunal removed the reference to same in the complaint.
Dr Von Marburg concedes the evidence clearly establishes the nature of the conduct is such as to ground a finding by the Tribunal of unsatisfactory professional conduct. The doctor also conceded the conduct was such as to establish the more serious determination by the Tribunal, namely, the doctor's conduct was professional misconduct. The doctor made these admissions in writing and through his oral evidence.
Section 139B of the Health Practitioner Regulation National Law (NSW) No 86a which defines "unsatisfactory professional conduct" of a registered health practitioner as:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following-
(a) Conduct significantly below reasonable standardConduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Section 139E of the National Health Law defines "professional misconduct" by a registered health practitioner as including more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature as to be professional misconduct.
The particulars reveal Dr Von Marburg, in a six month period between March and August 2008 self administered pethidine on Friday and Saturday nights. The doctor hid his addiction by over prescribing for patients and collecting the prescribed medication himself. He falsely entered patients' doses of the drug in both their clinical records and by falsifying his drug diary (kept when the doctor collects the prescription). The doctor also denied originally his professional misconduct when questioned by the Pharmaceutical Services Branch (PSB).
Both parties agreed the Tribunal, in the one hearing, should proceed to consider both the seriousness of the conduct and the appropriate protective orders. While the conduct must be given some examination by the Tribunal to determine its seriousness it is necessary to note s 167 of the Health Practitioner Regulation National Law states:
167 Jurisdiction [NSW]
(1) A Tribunal must-
(a) conduct an inquiry into a complaint, matter or application referred to it; and
(b) hear any appeal referred to it.
(2) No inquiry need be conducted into a complaint referred to a Tribunal if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
Dr Von Marburg admitted to the particulars relied upon and it is to the appropriate penalty for the breach, meaning the appropriate prohibition orders for the seriousness of the breach, that this Decision is directed.
In considering protective orders, the relevant test is set out in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (at 638):
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.
The ultimate role of the Tribunal is to protect the public. In particular, the public is to be assured that:
(a)It will be protected from the risk of the practitioner in question repeating the misconduct.
(b)The decision will have a deterrent effect on others that might be tempted to fall short of the high standards required of them.
(c)The decision will have the effect of encouraging the maintenance of high standards in the medical profession.
(d)The decision will have the effect of maintaining public confidence in the profession.
(e)The decision will not unnecessarily deprive the public of the services of the practitioner.
(See Childs v Walton, NSW Court of Appeal, Unreported, 13 November 1990; Buttsworth v Walton, NSW Court of Appeal, Unreported, 19 December 1991; Law Society of New South Wales v Bannister (1993) 4 LPDR 24; Council of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Law Society of New South Wales v Walsh, NSW Court of Appeal, Unreported, 15 December 1997).
Conduct
Dr Von Marburg is an ear, nose and throat surgeon with a practice full time in Albury, NSW. The doctor grew up in Melbourne and graduated from Monash University Faculty of Medicine in 1988 with Honours. He did most of his graduate training at The Alfred Hospital in Melbourne and then subsequently at St Vincent's Hospital in Melbourne, The Royal Victorian Eye and Ear Hospital and the Royal Children's Hospital in Melbourne before graduating with a fellowship from the Royal Australian College of Surgeons in 1997. He did a post-graduate fellowship in head and neck oncology at St Vincent's Hospital in Melbourne and then moved with his young family to Albury in 1999. There he established a full-time ear nose and throat practice in Albury with a special interest in head, neck oncology, rhinology as well as generalist ENT services from pediatrics through to geriatrics.
The doctor admitted there was a brief period in 2001 when he initially used pethidine. He self prescribed this medication for migraines which he was getting frequently during the lead up to a case that had been brought against him by a former patient for an otoplasty. He admits he used four or five ampoules over the period of four or five weeks. However, he stopped using straight after the migraines were relieved and did not continue using pethidine.
By 2008, he had worked in the Albury area and established a very busy practice over almost a decade. In 2008, personal and professional stresses again built up and the migraines returned. The doctor complains of multiple stressors and some poor coping skills during this period. He began using a pethidine vial to relieve the severe pain of the headaches in late March to early April 2008. After some time, he began taking the pethidine for his own recreational use as, he agreed, he had become addicted to the "euphoric" experience of pethidine. It was his practice, instead of discarding excess vials that he prescribed for a patient's relief of pain, often post operative, to keep some of that prescribed for the patient for his personal use on a Friday or Saturday night. Initially this would involve two vials over the weekend but it quickly rose to the doctor using four or five vials. The doctor therefore failed to destroy, as legally required, unsealed prescribed opiates not used for patient treatment.
Mr Martin Power of the Pharmaceutical Services Branch of NSW Health Department (PSB) contacted the doctor following a report from a local pharmacist. Generally, a patient takes a prescription from the doctor to the pharmacy and brings the drug back to the doctor for intramuscular injection. However, the pharmacist noted the doctor was picking up a large number of the prescriptions for pethidine himself. Dr Von Marburg denied his addictive use of pethidine to Mr Power. Under s 66, he came before the Medical Board. Only then did the doctor realise the difficulties he faced as to his competency as a medical practitioner and he began to co-operate. He was then placed in the Impaired Registrar's programme. His practice has since been monitored. He has been drug tested at random and given psychiatric support. He no longer holds the right to prescribe opiates and Schedule 8 drugs and is provided with the assistance of local doctors and anesthetist to prescribe Schedule 8 drugs for his patients - especially those post operative.
Since October 2008, Dr Von Marburg has been free of opiate use.
However, while the complaint against Dr Von Marburg reveals his administration of drugs of addiction in a closed period from March to August 2008, there is evidence, and he has admitted to continue using the drug through at least one prescription issued by him in early October 2008. However, since mid October 2008, given the Medical Council's random drug testing of him, he has had no relapse.
While the doctor originally denied his self administration of pethidine, when he was faced with the overwhelming documentary evidence he conceded as to his addiction. Further, the documentary evidence reveals his self administration involved him in deceptive and dishonest behaviour. He admits to this behaviour. Analysis of the doctor's drug taking reveals he hid his addiction within false medical records of existing patients. Those medical records, on examination, reveal, except for the doctor's own usage, that some of the dosages prescribed would otherwise attract a finding of inappropriate medical treatment.
The doctor's clinical records are totally unreliable. At best, the HCCC has from the records gleaned that in 10 of 12 patients' clinical records relied upon pethidine was used by the doctor in some quantity. Further, in nine of the 12 patients' clinical records, there was no appropriate details of the doctor's prescribing practice for the particular patient. The doctor's drug diary (reflecting the prescriptions he picked up from the pharmacy) was also falsified. It gives no truthful detail of the doctor's prescribing for the particular patients. For example, as revealed before the Medical Board from 27 March 2009 to 19 August 2009, Dr Von Marburg paid for 278 ampoules of the 283 that were prescribed. The assumption is the balance of the ampoules were collected by the patients. The doctor, therefore, had direct access to 278 ampoules. No record can be relied upon to determine how much of the pethidine medication the doctor recorded as prescribed for a particular patient was used by the doctor for that patient nor what dosage the doctor kept for himself.
Further, it is also unclear how much was truly given to each patient given both the clinical records and the doctor's drug diary are unreliable.
Dr John Curotta, and Ear, Nose and Throat specialist and the peer doctor took a thorough review of all the clinical records related to the seven patients. He recorded the complaints of the patients then, working from what would be the advised treatment of the complaints of each of the seven patients, assessed what was (often dishonestly) recorded by the doctor as to the treatment provided by the doctor. Dr Curotta then worked from the guidelines noted in the Australian Medicines Handbook as to the range of dosage of pethidine for relief of the acute pain, depending on age, allowing for the clinical situation. He concluded the treatment offered to six of the seven patients was significantly below the standard reasonably expected of such a highly qualified and experienced practitioner.
The Tribunal accepts Dr Curotta's analysis of the treatments given to each of the patients in our consideration as to the severity of the impugned conduct.
Dr Curotta also criticised the general standard of care in relation to the patients named in Schedule 2. He expressed concern as to the dosage recorded in some three patient's care. Comments from Dr Curotta include, for example, re Patient E:
The need for injectable narcotic analgesic 10 and 11 days after palate surgery for snoring is unusual.
In my opinion, the Pethidine was inappropriate to the circumstances.
In my opinion, the dose as written in Dr RvM's hand in his Pethidine diary was excessive and the volume of the injection, of at least 5ml is excessive and as such did not accord with the recognised therapeutic standard of what was appropriate in the circumstances.
In accordance with Schedule 2 of the Medical Practice Regulation, in my opinion, this conduct demonstrates judgement and care were exercised significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
and as to Patient J:
Dose of pethidine of 175 mg is greater than the dose ordered by anaesthetist when it was to be given closely supervised in Hospital, and is greater than dose which Dr RvM admitted to prescribing in his testimony to the Health Care Complaints Commission on Friday, 3 October 2008, page 10. "They were getting about 1 to 1 and a half milligrams per kilo" and is also greater than Australian Medicines Handbook guidelines.
In my opinion, the Pethidine administered may have been appropriate to the circumstances, since doses administered were within a time frame when severe pain may be expected.
In my opinion, the dose as written in Dr RvM's hand in his Pethidine diary was excessive and the volume of the injection, of at least 5ml is excessive and as such did not accord with the recognised therapeutic standard of what was appropriate in the circumstances.
In accordance with Schedule 2 of The Medical Practice Regulation, in my opinion, this conduct demonstrates judgement and care were exercised significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
The Tribunal in its examination of the doctor's conduct in the relevant period expresses its serious concern not only as to the doctor's breaching his ethical responsibilities to himself as a leading member of the medical profession but the dishonest way in which he then denied and deceptively hid his addiction. Further, while there is no evidence of direct hurt suffered by any patient in the context of the doctor's dishonest prescribing practices, the doctor, while limiting his "habit" of intravenously injecting pethidine only on Friday and Saturday nights, did however put at risk patients with his telephone advice given over weekends as to the ongoing care within hospitals. Dr Von Marburg agreed he felt "euphoric" throughout the weekend and his judgements would, therefore, have been affected when in that state. Fortunately, he was never, in the relevant period, required to attend upon a patient over the weekend. However, his self administration of an addictive drug turned him into a dishonest, medical practitioner.
As to the doctor's record keeping practises, the evidence reveals the doctor, through the guidance given to him in the Impaired Doctors Programme, has complied with the programme set for re-training as to the content of his clinical records and by January 2009, Dr Melville da Cruz, Associate Professor Otolaryngology opined:
I found Dr Von Marburg's Practice to be well run and staffed with stable and efficient practice managers. They were extremely co-operative in the review and regarded it as part of an educational process. I found the indications for Dr Von Marburg's surgical interventions to be orthodox and acceptable for a practitioner servicing regional New South Wales and adjacent Victoria.
There were some limitations in the legibility and completeness of Dr Von Marburg's records. These issues could easily be addressed by providing results of this audit to Dr Von Marburg and his staff and through the discussions I had with them at the Practice on the day of the review. Compliance could be monitored by a further review in time.
The Tribunal is satisfied the doctor, in self administering pethidine, in failing to keep an accurate drug diary, in destroying Schedule 8 drugs in breach of regulation or keeping Schedule 8 drugs (obtained for patients) and in administering the drug in a quantity that did not accord with recognised therapeutic standards to patients, has engaged such in conduct as to ground a finding of both unsatisfactory professional conduct and professional misconduct. Taking all the conduct into account, we are satisfied the doctor has engaged in serious professional misconduct. The judgement and care exercised by Dr Von Marburg in the treatment of seven patients fell below the standard reasonably expected of such a practitioner and in the context of both his denials and dishonest record keeping must be called unethical conduct. It was, therefore, professional misconduct.
Section 149(b) of the National Health Law states that a Tribunal may exercise any power conferred on it by the Act in relation to a registered health practitioner if the practitioner admits to the conduct in writing to the Tribunal. The respondent has done this in his written statement signed 1 March 2012. He continued to make admissions in his oral evidence. This permits the Tribunal to exercise its disciplinary functions in this matter. The powers conferred mean the Tribunal can caution, reprimand, counsel or determine other related orders (s 149A of the National Health Law), its power to fine (s 149B of the National Health Law). The Tribunal also has power to suspend or cancel registration in certain cases (s 149C of the National Health Law).
The HCCC makes application for the following conditions to be placed on the doctor given he is about to exit the impaired doctor's programme:
HEALTH CARE COMPLAINTS COMMISSION v DR VON MARBURG
CONDITIONS
Practice Conditions
1.To advise the Medical Council of New South Wales (the Council) prior to changing the nature or place of his practice.
2.Dr Von Marburg must not prescribe, possess, supply, administer, handle or dispense any drug of addiction (drugs under Schedule 8 of the New South Wales Poisons List). In order to comply fully with this condition:
(i)He must ensure his authorities as a medical practitioner under the provisions of the Poisons and Therapeutics Regulation 2008 to prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) are withdrawn and remain withdrawn.
(ii)Any subsequent change in his Schedule 8 authority must be in accordance with the Council's protocol. Prior to the submission of any variation application to the Pharmaceutical Services Branch, he must seek and obtain approval of the Medical Council of NSW to the lifting of this condition and to the re-instatement of any prescribing authority. (see note)
3.To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia and/or the Pharmaceutical Services Branch of the NSW Health Department where such exchange IS necessary to facilitate the monitoring of compliance with these conditions.
Health Conditions
4.Dr Von Marburg not prescribe for self-medication.
5.Dr Von Marburg is not to self administer:
(a)any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act 1985
(b)any narcotic derivative,
(c)any non prescription compound analgesic or cold medication.
Such medications should only be prescribed and taken at the directions of his treating practitioners.
6.Should Dr Von Marburg be prescribed or directed to take a
(a)substance detailed in Schedule 4 or 8 of the NSW Poisons List,
(b)narcotic derivative
(c)non prescription compound analgesic or cold medication.
Dr Von Marburg must provide to the Medical Council within seven days written confirmation of such treatment from the treating practitioner.
7.To attend for treatment by a psychiatrist of his choice. experienced in the treatment of drug addiction, at a frequency to be determined by Dr Von Marburg and the treating psychiatrist. The doctor is to authorise his treating practitioner to inform the Medical Council of New South Wales of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary chance).
8.The doctor is to attend for treatment by counsellor of his choice, experienced in the treatment of drug addiction, at a frequency to be determined by Dr Von Marburg and the treating counsellor. The doctor is to authorise his treating counsellor or inform the Medical Council of New South Wales failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
9.The doctor is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Von Marburg and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of New South Wales of failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
10.The doctor is to continue taking any medication prescribed by his treating practitioners.
11.That the extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council-nominated practitioners.
12.To attend for Review by the Council-nominated psychiatrist on a six monthly basis or as otherwise directed by the Medical Council of New South Wales at the Council's expense.
13.To authorise the Medical Council of New South Wales to forward copies of the s 66 and s 66AB written decisions and subsequent Board Review Interview reports and other relevant information to the Council-nominated practitioners and his treating practitioners.
Notes re Conditions
Practice Condition 2 is a critical compliance condition, see section l49A(4) and (5) of the National Law in accordance with s 149C(3).
The Tribunal to make an order under section 163(l)(a) of the National Law that the Medical Council of New South Wales is the appropriate review body for review of conditions. This order should only apply to the conditions.
There was significant objection by Mr Lynch, counsel for Dr Von Marburg to the punitive effect conditions numbered 11, 12 and 13 would have on the doctor who, on the recommendations of all treating medical professionals, is about to be discharged after three and a half years in the Impaired Doctors rehabilitation programme. Further, the critical compliance condition (under s 149 of the National Law) asked for by the HCCC has the effect the doctor would be automatically deregistered, without a hearing, if there is a breach of condition No 2, namely, a relapse by Dr Von Marburg. The Tribunal is of the view the doctor should be given some credit for the three and a half years he has practiced without relapse. Further, the doctor continues to practice without the right to prescribe Schedule 8 and does not seek to have this right restored.
The following general submissions were made on behalf of the doctor by his counsel, Mr Lynch, who opined as to Dr Von Marburg:
He is a skilled clinician in the eyes of his peers. He serves a relatively under serviced regional area where there is a relative shortage of ENT surgeons. He is a person of good character in my submission. He is a generous contributor to his community. He runs an oncology head and neck clinic on Friday mornings for under privileged patients and perhaps most tellingly he has over the last three and a half years or so satisfied the Medical Council that his conduct, including his record keeping which has improved following orders and discussions with a number of other practitioners so that the Medical Council does not think there is any issue remaining with his record keeping but in general terms he has satisfied the Medical Council with the way he has responded to this problem with the chance to rehabilitate himself so positive that Dr Samuels has proposed that he should now exit the program.
That is a level of confidence from practitioners and Medical Council members who have had a very close engagement with him for a long period and there is no suggestion, indeed the contrary is the case that his compliance with his condition is advancing in the way that is expected in the ideal impaired doctor who is on his way to recovery, has been accepted to the fullest extent such that he Medical Council now says "You are rehabilitated to the point where you do not need to remain in the health or impaired register program.
Dr Von Marburg clearly accepted before the Tribunal he is "solely responsible for (his) dangerous and irresponsible behaviour". However, it is in the "public interest" that the doctor's conduct must be assessed by the Medical Tribunal.
It is, therefore, necessary to consider the possibility of a relapse by the doctor. The question of the doctor's possible relapse was addressed by Dr Robert Fisher, Consultant Psychiatrist and the Medical Council's nominated assessor in the overseeing of the doctor's rehabilitation. Dr Fisher opined on 25 July 2011:
When doctors, or any other persons, have developed a pattern of drug abuse and, in particular, drug abuse with intravenous opiates, there is always a potential risk of relapse, and this would have to be deemed to be a potential vulnerability that exists life-long.
The risk of relapse in large part depends upon amelioration of factors that have lead to the use of, or experimentation with, such drugs in the beginning. This can include prescribed treatment for painful conditions, recreational use for euphoriant effect, or self-treatment of physical pain, or psychological distress and whether the person has developed a mindset that the use of such drugs is not an option, and that they are able to hold that resolve over time.
. . .
As best I can ascertain, Dr Von Marburg expresses full commitment to remaining abstinent from self-administration of prohibited substances, and he says that his life situation is less stressful and that he is not troubled by headache as much as he was previously.
All these factors could be seen to reduce the risk of lapsing into Pethidine or other prohibited substance abuse.
I do not believe it is possible for anyone to quantify the likelihood of Dr Von Marburg suffering a lapse.
. . .
Apart from the evidence that he has not lapsed into self-administration of Pethidine or used any other prohibited substances, (as reflected in the supervised drug screening), Dr Von Marburg reports being less anxious, less stressed and generally happier over the years since 2008.
He reports a very supportive and fulfilling family life and tells me that he has not been subject to any further complaints about his clinical practice.
. . .
I believe that, as long as Dr Von Marburg desists from self-administration of Pethidine or any other prohibitive substances, and complies with the usual standards of medical practice and of his specialty ENT practice, he does not pose any risk to the community.
We take into account Dr Fisher's opinions and also the fact the doctor has been free of his addictive behaviour for three and a half years. However, while not part of the complaint, there is also before us evidence that in 2001 the doctor had a similar problem but was, for seven years until the time of this complaint, free from drug use. Further, there seems to have been evidence of some access to Pethidine in early October 2008.
The doctor has agreed to continue his specialist practice without the right to prescribe Schedule 8 drugs. Local physicians are happy to continue to support Dr Von Marburg. In allowing the local anesthetist to prescribe there is, by default, a control on the doctor's prescribing practices for scheduled drugs. There is evidence Dr Von Marburg is a kind doctor and a good surgeon. He is a professional of good standing in the community and a fine family man. His family has provided him with on-going support.
Nonetheless, we are of the view some conditions should attach to Dr Von Marburg's continued practice of medicine. We accept the conditions placed upon the doctor should not be onerous given his total compliance over the last three and a half years. Clearing in facing up to his human frailty the doctor has needed psychiatric assistance. He has now accepted his need for support . The treating doctors have opined as to his acceptance of the resolve necessary to ensure that he does not pose any risk to the community. We, therefore, amend the HCCC's conditions and allow conditions numbered 4,5,6,7,8,9,10. We do not allow conditions numbered 11, 12, 13 nor the critical compliance condition practice on condition numbered 2. We are satisfied the overview in place should alleviate any concern as to the doctor's possible regression.
An application was made for the suppression of the doctor's name. In Walton v Momot [1997] NSWCA 334, the Court of Appeal held per Handley JA (with whom Priestley JA and Grove AJA agreed):
There was a prima facie presumption under the Act that the Tribunal would sit in public.
and (at 4):
This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. . . .
We find no exceptional circumstances in this case. The fact that the doctor is a senior, specialist practitioner and lives in a country town we do not accept as out of the ordinary. The fact that the doctor has been drug free for three and a half years cannot be viewed as exceptional or special. This is the ethical standard expected from all medical practitioners. There shall be no suppression of the doctor's name and any existing suppression order shall be lifted.
Both parties agreed there be a suppression order on all patient names as contained in Schedules 1 and 2 and such suppression order should apply to the said names if they appear in the documentary evidence placed before the Tribunal including the expert medical reports.
As there is no dispute between the parties as to Costs the respondent shall pay the complainant's costs.
Orders
The Tribunal makes the following orders:
1.Dr Von Marburg is guilty of unsatisfactory professional conduct and professional misconduct in that, in the exercise of his medical practice, his knowledge, skill, judgement and care were significantly below the standard expected of a practitioner; he breached the Medical Practice Act 1992 and he engaged in improper and unethical conduct.
2.We, therefore, order the following conditions will apply in Dr Von Marburg's practice of medicine:
CONDITIONS
Practice Conditions
1.Dr Von Marburg to advise the Medical Council of New South Wales (the Council) prior to changing the nature or place of his practice.
2.Dr Von Marburg must not prescribe, possess, supply, administer, handle or dispense any drug of addiction (drugs under Schedule 8 of the New South Wales Poisons List). In order to comply fully with this condition:
(i)He must ensure his authorities as a medical practitioner under the provisions of the Poisons and Therapeutics Regulation 2008 to prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) are withdrawn and remain withdrawn.
(ii)Any subsequent change in his Schedule 8 authority must be in accordance with the Council's protocol. Prior to the submission of any variation application to the Pharmaceutical Services Branch, he must seek and obtain approval of the Medical Council of NSW to the lifting of this condition and to the re-instatement of any prescribing authority. (see note)
3.Dr Von Marburg is to authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia and/or the Pharmaceutical Services Branch of the NSW Health Department where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
Health Conditions
4.Dr Von Marburg is not to prescribe for self-medication.
5.Dr Von Marburg is not to self administer:
(a)any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act 1985
(b)any narcotic derivative,
(c)any non prescription compound analgesic or cold medication.
Such medications should only be prescribed and taken at the directions of his treating practitioners.
6.Should Dr Von Marburg be prescribed or directed to take a
(a)substance detailed in Schedule 4 or 8 of the NSW Poisons List,
(b)narcotic derivative
(c)non prescription compound analgesic or cold medication.
Dr Von Marburg must provide to the Medical Council within seven days with written confirmation of such treatment from the treating practitioner.
7.Dr Von Marburg is to attend for treatment by a psychiatrist of his choice, experienced in the treatment of drug addiction, at a frequency to be determined by Dr Von Marburg and the treating psychiatrist. The doctor is to authorise his treating practitioner to inform the Medical Council of New South Wales of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary chance).
8.The doctor is to attend for treatment by a counsellor of his choice, experienced in the treatment of drug addiction, at a frequency to be determined by Dr Von Marburg and the treating counsellor. The doctor is to authorise his treating counsellor or inform the Medical Council of New South Wales failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
9.The doctor is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Von Marburg and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of New South Wales of failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
10.The doctor is to continue taking any medication prescribed by his treating practitioners.
3.The respondent shall pay the complainant's costs.
Decision last updated: 10 May 2012