Health Care Complaints Commission v Pembroke
[2011] NSWMT 11
•19 September 2011
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Pembroke [2011] NSWMT 11 Hearing dates: 19 September 2011 Decision date: 19 September 2011 Before: Staff J; Dr J Branch; Dr P Anderson; Ms H Kiel Decision: 1. Pursuant to s 163B(4) of the Health Practitioner Regulation National Law (NSW) the Tribunal imposes conditions upon the registration of Dr Pembroke, as set out in Annexure A.
2. The Tribunal orders that the Medical Council of New South Wales shall be the appropriate review body for the purpose of any review of these conditions. The Medical Council may remove or vary the conditions as it considers appropriate.
3. Dr Pembroke is to pay the costs of the Health Care Complaint Commission of the hearing on 19 September 2011 including preparation costs.
Catchwords: Medical practitioner - breach of conditions imposed by the New South Wales Medical Board - professional misconduct - unsatisfactory professional conduct - conditions imposed upon practitioner's registration - costs Legislation Cited: Health Care Complaints Act 1993
Medical Practice Act 1992Cases Cited: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Buttsworth v Walton 19 December 1991; [1991] NSWCA 40
HCCC v Litchfield (1997) 41 NSWLR 630Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Andrew Pembroke (Respondent)Representation: Counsel
Dr K Stern of counsel (Complainant)
Mr P Strickland SC (Respondent)
Solicitors
Health Care Complaints Commission
(Complainant)
Watsons Solicitors and Barristers
(Respondent)
File Number(s): 40045 of 2009
Judgment
EX TEMPORE
By complaint dated 27 October 2009, the Health Care Complaints Commission ("HCCC"), following consultation with the New South Wales Medical Board ("Board"), in accordance with s 39(2) and s 90B(3) of the Health Care Complaints Act 1993, and s 51(1) of the Medical Practice Act 1992 (now repealed although these proceedings are dealt with in accordance with its provisions) ("the Act"), alleged that Dr Andrew Pembroke, a registered practitioner, has been guilty of unsatisfactory professional conduct within the meaning of s 36 of the Act and/or professional misconduct within s 37 of the Act, in that he has:
(i) contravened a condition or conditions to which his registration is subject; and/or
(ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
The particulars of the practitioner's alleged conduct which is the subject of the complaint were:
At all relevant times the practitioner practiced as an anaesthetist.
By letter dated 28 December 2006 the practitioner notified the NSW Medical Board that he had been using propofol for recreational purposes.
Since 28 February 2007 and at all relevant times thereafter the practitioner has been subject to the following conditions imposed by the NSW Medical Board:
3. That he is not to self-administer:
(a) any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 7 of the Drug Misuse and Trafficking Act
(b) any narcotic derivative, non-prescription compound analgesic or cold medication.
Such medications should only be prescribed and taken at the direction of his treating practitioner.
...
9. To attend for thrice weekly Urine Drug Testing ...:
1. Between about 1 April 2007 and 10 April 2007 the practitioner breached condition 3(a) of the Conditions to which his registration was subject in that he self-administered propofol, a substance detailed in Schedule 4 of the NSW Poisons List.
2. Between about 20 April 2007 and 8 May 2007 the practitioner breached condition 3(a) of the Conditions to which his registration was subject in that he self-administered propofol, a substance detailed in Schedule 4 of the NSW Poisons List.
3. On about 4 July 2007 the practitioner breached condition 3(a) of the Conditions to which his registration was subject in that he self-administered diazepam, a substance detailed in Schedule 4 of the NSW Poisons List.
4. On about 1 March 2008 the practitioner breached condition 3(a) of the Conditions to which his registration was subject in that he self-administered cocaine, a substance detailed in Schedule 8 of the NSW Poisons List and Schedule I of the Drug Misuse arid Trafficking Act 1985.
5. On about 26 October 2008 the practitioner breached condition 3(a) of the Conditions to which his registration was subject in that he self-administered cocaine, a substance detailed in Schedule 8 of the NSW Poisons List and Schedule 1 of the Drug Misuse and Trafficking Act 1985.
Background
On 19 November 2008, the Board, in the exercise of its powers for the protection of the public, pursuant to s 66 of the Act, suspended Dr Pembroke from practising medicine. Dr Pembroke was initially suspended for a period of eight weeks, which was extended in accordance with the provisions of s 67 of the Act. Dr Pembroke applied for a review of the Board's decision.
On 30 January 2009, proceedings were conducted pursuant to s 66AB of the Act. This section enables a medical practitioner to apply for a review of a decision made by the Board under s 66 of the Act.
Pursuant to s 66AB(3) of the Act, the Board set aside its Order dated 19 November 2008 (suspending Dr Pembroke) and imposed conditions upon Dr Pembroke's registration.
Relevantly, condition 9 required Dr Pembroke to attend to thrice weekly urine drug testing in strict accordance with the Board's protocol and the participant's handbook. Results of the urine drug testing were to be forwarded to the Board's nominated and treating practitioners and to the Board.
Condition 11 required Dr Pembroke to attend for review by the Board nominated psychiatrist on a three monthly basis, or as otherwise directed by the Board at the Board's expense. The Board appointed Dr Anthony Samuels, psychiatrist, to monitor Dr Pembroke's progress. Between February 2007 and September 2010, Dr Samuels saw Dr Pembroke on nine occasions and provided reports to the Board.
Complaint and particulars admitted
At the commencement of today's proceedings Dr K Stern of counsel, who appeared for the HCCC, advised the Tribunal that following discussions with Mr P Strickland SC, who appeared for Dr Pembroke, she had been advised that Dr Pembroke intended to admit the particulars to the complaint.
Dr Pembroke admitted particulars 1 and 2, submitting that it was not a deliberate breach, but rather inadvertence on his part and that the conduct amounted to unsatisfactory professional conduct. Particular 3 was also admitted. However, it was submitted that the failure to inform the Board of the use of diazepam was not a deliberate concealment. Dr Pembroke acknowledged that this amounted to professional misconduct, although at the lower end of the scale.
In respect of particulars 4 and 5, these particulars were also admitted. Dr Pembroke said that the use of the drug was not deliberate and was inadvertent. He acknowledged that it amounted to unsatisfactory professional conduct.
Findings
The Tribunal found, pursuant to s 60 of the Act, that the complaint and the particulars had been proven. The Tribunal finds that the conduct admitted in particular 3 is professional misconduct. In respect of particulars 1, 2, 4 and 5, such conduct amounts to unsatisfactory professional conduct.
Appropriate protective orders
In light of Dr Pembroke's admissions, Dr Stern submitted that the joint position of the parties was that the appropriate protective order was that conditions be imposed upon Dr Pembroke's registration. It was submitted that the conditions should be similar to those imposed by the Board on 18 May 2010, as set out in Dr Pembroke's registration as a medical practitioner. Mr Strickland confirmed to the Tribunal that that was also his client's position.
In determining the appropriate orders to be made, the primary consideration for the Tribunal is the protection of the public and not to punish the practitioner. Such protection itself involves a consideration of the gravity of the conduct; the risk of recurrence of the misconduct; the need to deter other medical practitioners from engaging in similar conduct and to maintain the standards of the medical profession and public confidence in it: see in particular the judgment of HCCC v Litchfield (1997) 41 NSWLR 630.
During the proceedings Dr Stern tendered four reports of Dr Samuels dated 4 January 2011, 8 February 2011, 23 February 2011 and 9 August 2011. In the last dated report Dr Samuels observed:
Dr Phillips is also correct to point out that my reports tendered to the Impaired Registrants Programme (IRP) have attested to Dr Pembroke's progress while under the auspices of the programme. I have consistently remained of the view that as long as this progress of monitoring was ongoing, Dr Pembroke was indeed fit to, and has the capacity to, practise as an anaesthetist.
Dr Samuels concluded:
"Given the fact that Dr Pembroke practices within a high risk speciality and to quote Dr Phillips (paragraphs 88, 89) " the safety of the public remains paramount " we are, indeed, in " broad agreement " that in order for Dr Pembroke to practise safely as an anaesthetist some form of ongoing monitoring and supervision is required".
Mr Strickland tendered a report of Dr Jonathan Phillips, consultant psychiatrist, dated 7 July 2011. Relevantly, Dr Phillips concluded:
It is my opinion that Dr Pembroke remains fit to practise as a consultant anaesthetist. However, the safety of the public remains paramount. With this in mind, and assuming that Dr Pembroke is permitted to continue to work as a consultant anaesthetist, a further period within the IRP would seem sensible. This would allow for proper monitoring of the medical practitioner for whatever period of time was thought desirable.
It is appropriate that the Tribunal gives weight to the opinions of Dr Samuels and Dr Phillips.
The Tribunal has also taken into account that for the past three years Dr Pembroke has not tested positive to any substance detailed in Sch 4 or Sch 8 of the New South Wales Poisons List or Sch 1 of the Drug Misuse and Trafficking Act 1985.
We observe that the question of fitness to practise medicine must be determined at the date of this hearing: see the judgment of the High Court of Australia in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [21].
In determining the appropriate protective order, the Tribunal has taken into account the seriousness of the conduct; the admissions made by Dr Pembroke; the evidence that Dr Pembroke has reformed; contrition; responsibility taken by Dr Pembroke for his actions and the risk of recurrence.
As the primary focus in determining the protective order is the protection of the public, the subjective factors relating to the practitioner, such as his shame and personal ordeal or the absence of any other "blemish", have little or no weight: see decision of the Supreme Court of New South Wales Court of Appeal in Buttsworth v Walton [1991] NSWCA 40.
In relation to the likelihood of the repetition of misconduct, the Tribunal is firmly of the opinion that Dr Pembroke will not repeat his past misconduct. The Tribunal has arrived at this opinion as it considers that Dr Pembroke committed the misconduct at a time when he was suffering emotional trauma. We have also taken into account the character references relied upon by Dr Pembroke.
The Tribunal is mindful that an element of deterrence is required to assure the public that serious lapses in the conduct of practitioners will not be passed over or put aside. Taking into account the circumstances of this matter, the Tribunal considers that this deterrence can be achieved by means of imposing conditions upon Dr Pembroke's registration.
For these reasons the Tribunal therefore makes the following Orders:
Orders
1. Pursuant to s 163B(4) of the Health Practitioner Regulation National Law (NSW) the Tribunal imposes conditions upon the registration of Dr Pembroke, as set out in Annexure A.
2. The Tribunal orders that the Medical Council of New South Wales shall be the appropriate review body for the purpose of any review of these conditions. The Medical Council may remove or vary the conditions as it considers appropriate.
3. Dr Pembroke is to pay the costs of the Health Care Complaints Commission for the hearing on 19 September 2011 including preparation costs.
**********
ANNEXURE A
1. To obtain Council approval prior to changing the nature or place of practice.
2. To notify the current and/or future Director of Anaesthetics or other duly authorised registered medical practitioner with responsibility for Anaesthetic staff at every place at which he provides Anaesthetic services of his Practice and Health Conditions.
a) to forward to the Council within 7 days of receiving Council approval a copy of the conditions signed by each one of these persons.
3. To consent to the Council notifying all current and future employer/s of his Practice and Health Conditions and of any issues arising in relation to compliance with these Conditions.
4. To not work more than two on-call sessions (of up to 28 hours in total) in any 7 day period, Sunday to Saturday.
Health conditions
1. Not to prescribe for self-medication.
2. To attend a general practitioner of his choice, at a frequency to be determined by Dr Andrew Pembroke and the treating practitioner. To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or any significant change in health status (including a significant temporary change).
3. That he is not to self-administer:
(a) any substance detailed in Schedule 4 Appendix D or 8 of the NSW Poisons List or Schedule 1of the Drug Misuse and Trafficking Act.
(b) any narcotic derivative, non-prescription compound analgesic or cold medication.
Such medications should only be prescribed and taken at the direction of his treating practitioner.
4. That should he be prescribed or directed to take a:
(a) substance detailed in Appendix D of Schedule 4 of the NSW Poisons List,
(b) narcotic derivative,
(c) non-prescription compound analgesic or cold medication,
then he must notify the Council-nominated psychiatrist and the Council. In addition within 7 days he must provide the Council with written confirmation of such treatment from the treating practitioner.
5. To limit his alcohol intake to social consumption, defined by the Council as being not more than 2-3 standard drinks in any 24 hour period, with a minimum of two alcohol-free days per week. A standard drink contains not more than 10 grams alcohol.
6. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or any significant change in health status (including a significant temporary change).
7. To take any medication prescribed by his treating psychiatrist.
8. 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.
9. To attend for random Urine Drug Testing in strict accordance with the Council's protocol and the Participant's Handbook. Results of Urine Drug Testing are to be forwarded to the Council-nominated and treating practitioners and to the Council. Such Urine Drug Testing will be at his expense.
10. To attend for review by the Council-nominated psychiatrist on a six monthly basis or as otherwise directed by the Council, at the Council's expense.
11. To attend a Review Interview at the Council every six months or as otherwise directed by the Council.
12. To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council-nominated practitioners and his treating practitioners.
Decision last updated: 23 September 2011
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