Health Care Complaints Commission v Pham

[1999] NSWCA 39

CITATION:	Health Care Complaints Commission v Pham [1999] NSWCA 39
FILE NUMBER(S):	CA 40680/98
HEARING DATE(S):	18/02/99
JUDGMENT DATE:	4 March 1999
PARTIES :	Health Care Complaints Commission v Dr Ngo Chau Pham
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION:	Medical Tribunal of NSW
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Kirkham DCJ

COUNSEL:	M J Joseph SC (Appellant) M I Bozic/E H Pike (Respondent)
SOLICITORS:	D M Swain (Appellant) Tress Cocks & Maddox (Respondent)
CATCHWORDS:	Professional misconduct and unsatisfactory professional conduct by medical practitioner; reckless, unethical and improper prescription of drugs of addiction; Medical Tribunal's orders so unreasonable as to demonstrate appealable error; removal from register of medical practitioners appropriate; Medical Practitioners Act 1992 ss36, 37 and 64(1).
DECISION:	Appeal allowed - orders made

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40680/98

MEAGHER JA
BEAZLEY JA
FITZGERALD JA

Thursday, 4 March 1999

HEALTH CARE COMPLAINTS COMMISSION v Dr Ngo Chau PHAM

JUDGMENT

1 MEAGHER JA: I agree with Fitzgerald JA.
2 BEAZLEY JA: I agree with Fitzgerald JA.
3 FITZGERALD JA: The respondent, Dr Pham, is a medical practitioner who, by order of the Medical Tribunal of New South Wales dated 21 August 1998, was suspended from practising medicine until the commencement of the first term of public hospital employment in New South Wales in January this year. The Tribunal also ordered that Dr Pham “seek and undergo psychiatric and/or counselling with a psychiatrist of his choice, such treatment to commence within two months of [the Tribunal’s] order” and “that any application by Dr Pham to the Pharmaceutical Services Branch of the New South Wales Department of Health for the variation and/or lifting of the restrictions in his rights in relation to Schedule 8 drugs be made only in consultation with the Medical Board …”. Additionally, the following conditions were imposed on Dr Pham’s registration as a medical practitioner:
“(a) that within seven days of commencing practice, he notify the Board in writing of the name of his nominated treating psychiatrist;
(b) that he authorise his psychiatrist to notify the Medical Board immediately, if the psychiatrist finds a significant deterioration in his mental state sufficient to affect his capacity to practise medicine;
(c) that he work as an employed practitioner in a public hospital for a period of at least two years under a supervisor approved in writing by the Medical Board;
(d) that he authorise the supervisor to report to the Board on his progress on a monthly basis for the first three months, and thereafter on a quarterly basis, for the period of his supervision;
(e) that he complete such educational courses or activities as may be specified and directed by the Medical Board from time to time to address his deficiencies in knowledge, judgement and care in the practice of medicine as set out in the particulars of this complaint and in the Tribunal’s reasons for decision.”
4 The Health Care Complaints Commission has appealed to this Court, seeking in lieu of the orders made by the Medical Tribunal orders that Dr Pham’s name be removed from the register of medical practitioners pursuant to subs64(1) of the Medical Practice Act 1992, and that he be ordered to pay the Commission’s costs before the Medical Tribunal and of this appeal.
5 The Commission commenced the proceeding in the Tribunal against Dr Pham pursuant to subs51(1) of the Medical Practice Act, claiming that Dr Pham had been guilty of professional misconduct and unsatisfactory professional conduct within the meaning of ss36 and 37 of that Act in that, in relation to the treatment of 28 of his patients, he “…engaged in conduct which demonstrates a lack of adequate knowledge, judgement and care in the practice of medicine and … in conduct relating to the practice of medicine that is improper and unethical”. The particulars of the complaint, including the Schedule there referred to, are annexed to these reasons.
6 Dr Pham represented himself before the Tribunal and admitted the allegations made by the Commission. It is not now in dispute that Dr Pham was guilty of professional misconduct as found by the Tribunal.
7 The Tribunal accepted the evidence of an expert witness called by the Commission, Dr Seidler, a general practitioner with a special interest in medicine related to addiction to drugs and alcohol. The material part of the Tribunal’s decision concerning Dr Seidler’s evidence was as follows:
“Dr Seidler was of the view that the conduct of Dr Pham, … was a departure from the recognised standard within the medical profession in relation to the proper exercise of responsible medical judgement; and/or his conduct demonstrated a lack of adequate knowledge, judgement or care in the practice of Medicine; and/or that this conduct was improper and unethical so as to attract the strong disapproval not only of himself but of his professional peers of good repute and standing.
In respect of Patients A, B and C
· The prescribing of Pethidine and codeine phosphate for continuous periods in excess of two months.
· The failure to notify the NSW Department of Health or to make an application to continue to prescribe Schedule 8 drugs of addiction in excess of two months.
In respect of Patient A
· The prescription of Pethidine tablets between December 1994 and July 1996 for severe recurrent abdominal pain due to abdominal adhesions;
· The prescription of Pethidine tablets in large amounts together with benzodiazepines for this condition;
· The prescription of 100 Pethidine tablets together with 100 Serepax 30mg tablets on 30th December 1994.
Comment
It was Dr Seidler’s view that the prescription of 100 Pethidine 50mg tablets together with 100 Serepax 30 mg tablets on 30th December 1994 was a gross over prescription of two drugs which when combined could produce intoxication and overdose symptoms. The clear evidence from this conduct is that that the patient was dependent upon Serepax. It was thus inappropriate to treat chromic severe abdominal pain due to abdominal adhesions with Pethidine, Serepax and codeine phosphate tablets.

In respect of Patient B
· The prescription of Pethidine 50mg between December 1994 and August 1996 in the quantities outlined in Schedule B for back pain in the face of clear evidence of over prescription of these tablets together with large quantities of Normison 20mg.
· The co-prescription on 10th May 1995 of 100 Pethidine 50mg and 100 Normison 20mg tablets.
Comment
Dr Seidler was of the opinion that this was extremely hazardous given the clear dependence on these medications by the patient. Both drugs were inappropriate for severe attacks of low back pain and this volume of prescribing made it impossible for a patient to take this quantity of medication in the time elapsed, leaving a strong suspicion that the patient was trafficking the medication.
In respect of Patients in Schedule O
· In the manner and circumstances in which he issued Rivotril prescriptions
Comment
The usual dosage of Rivotril is 0.5mg twice daily Dr Pham prescribed Rivotril 2mg tablets for a number of patients in the schedule. Rivotril 2mg in quantities of 200 tablets is, in the view of Dr Seidler, a potentially lethal dose and that Rivotril (clonazepam) has been implicated by the Coroner as a benzodiazepine associated at autopsy with overdose deaths in narcotic addicts.
In Respect of Patient C
· The prescription of Physeptone 10mg between June 1994 and May 1996 in the quantities outlined in Schedule C for lower back pain.
Comment
Physeptone is a synthetic long acting narcotic requiring an authority.
In respect of Patient D
· During the period June 1994 and October 1996 in prescribing Pethidine 50mg in the quantities outlined in Schedule D for severe migraine and lower back pain.
· The prescription of these tablets in lots of 100 for periods of greater than two months without an authority;
Comment
The co-prescription of Pethidine 50mg, Panedeine Forte together with benzodiazepines was hazardous prescribing.
In respect of Patients A, B, C and D
· That Dr Pham should have known that Pethidine 50mg which he prescribed to Patients A, B and D and Physeptone 10mg which he prescribed to Patient C were being or were likely to be abused.
In respect of Patient E
· The prescription of 250 Proviron tablets in an uncontrolled setting without evidence of adequate physical examination or endocrinological work up.
Comment
Dr Seidler’s view was the concomitant prescription of ephedrine hydrochloride and Proviron, where the patient wanted to improve his muscular shape and definition, gives rise to a real concern that some of the medication may have been diverted to other patients or illegally disposed of.
In respect of patient N
· The prescription of on 31 January 1992 Deca-Durabolin, Sustanon and Primobolin depo together with other anabolic steroids and gonadal hormones without any evidence of weight measurement, blood pressure measurement, blood sugar level, liver function tests or any other clinical examination.
· The prescription of Anapolon, Sustanon, Halostin and Hemineurin.
Comment
Dr Seidler was of the view that this pattern of prescribing raised suspicions that the patient was using this combination for body building purposes only.
In respect of Patients E and N
· The prescription of anabolic steroids without taking a clear history or engaging in investigative procedures in respect to the conditions of the patients and without taking any steps to ensure those substances prescribed were administered properly.
· The prescription of Deca-Durabolin, Sustanon ampoules, Primoteson ampoules, Proviron tablets, Anapolon tablets, Primobolin tablets and/or Halestin tablets in order to assist them in body building activities.
Comment
In prescribing these quantities, costing in some cases in excess of $400, Dr Seidler was of the view that Dr Pham should have been alerted to their potential misuse.
In respect of patients E to N
Comment
Dr Seidler was of the view that in prescribing as he did and in the quantities outlines in Schedules E to N, Dr Pham over prescribed anabolic steroids and sex hormones. The absence of adequate instructions as to the taking of the medications and leaving it to the patients’ discretion was extremely hazardous prescribing.
In respect of Patients E and F
· The prescription of ephedrine hydrochloride on the relevant dates and the extremely large quantities shown in Schedules E and F for the purpose of assisting the patients’ body building activities.
The Tribunal also notes the comments of Dr Seidler in paragraph 2(a), 3(a), 4(a), 5(a), 6(a), (b), (c), (d), 7(a), 8(a), 9(a). These paragraphs deal with Dr Seidler’s views on the recognised standards within the medical profession in relation to the prescription of therapeutic quantities of drugs of addiction, benzodiazepine medication, steroids and sex hormones, ephedrine hydrochloride, Hemineurin and the prescription of drugs to patients suspected of abusing drugs. The Tribunal specifically accepts Dr Seidler’s evidence on this point.
In addition to his report, Dr Seidler gave oral evidence. He said that for the prescription of Rivotril some sort of history of epilepsy and/or epileptic fits would be necessary together with a report from either a neurologist or a hospital where they had attended and obtained a CT scan or an EEG which indicated the level of epilepsy and what medications had been prescribed for them. He said that Rivotril was a well known drug of abuse and had been so since the late 1980’s. He said that it was largely prescribed for temporal lobe epilepsy which is not all that common and that he would be suspicious if a patient nominated Rivotril for his or her epilepsy.
In the absence of any CT scan or similar investigation, Dr Seidler said he would have reinstituted an investigatory process including CT scan and referred to a neurologist. He said that he would not prescribe Rivotril as his first drug of choice nor indeed the second or possibly third if there was any evidence of concomitant history of drug and alcohol problems in the past because of the potential for abuse. Dr Seidler nominated three or four others which had a better record of success and were unlikely to be abused because of the absence of any sedating effect experienced with Rivotril.
When dealing with Hemineurin, Dr Seidler said that it was usually prescribed in an institutional setting where there was supervision of the medication being taken. He thought it did not have a place in general practice for an outpatient, particularly where the patient was unstable and still drinking because of the risk of overdosing. Indeed, he described that practice as “extremely hazardous”.
He said of the prescription of Physeptone, (methadone), which is used in the treatment of heroin addition, that it was not uncommon for large doses to be used in a controlled setting, but the prescription of this during to an outpatient without authority, without control and without supervised dosing, was extremely dangerous and potentially hazardous to the patient. In addition, there was a ready market for Physeptone tablets on the street. Physeptone tablets are easily ground up and injected with water intravenously. The evidence for abuse, he said, were what he described as track marks on the arms, legs and other sites of intravenous injection. There was also available a service at the NSW Department of Health within the Pharmaceutical Services Branch, by telephone access to a database, as to whether or not the patient was either on methadone or has been on methadone before.
Dr Seidler said of Pethidine that it was a drug regularly abused in tablet form by people who are drug dependent. It is a short acting narcotic which needs to be taken four to eight times a day to maintain an analgesic effect. He thought it inappropriate for the long term treatment of pain.
Dr Pham asked Dr Seidler about the approval given by the Pain Clinic about the prescription of 300 tablets of Physeptone to a patient. Dr Seidler conceded that it was not unusual for patients who have serious pain to take a higher dose than was usually indicated but he added that if the patient had a problem with drug dependence as well, then one had to be careful about how many were prescribed for them due to the potential for them to be diverted to other people to be used inappropriately.
What concerned Dr Seidler the most in relation to Dr Pham’s practice of prescribing, was the sheer quantities of medication prescribed at one time, the risk of overdose to the patient and the potential that the medication was being diverted to other people on the street who have no knowledge or understanding of how the medication should be taken. He cited cases of people who have ended up in hospital with benzodiazepine poisoning. He though that if a patient was dependent on these medications then they should be dispensed daily at a pharmacy near the practice with constant contact with the pharmacist.
Dr Seidler was not of the view that Dr Pham’s records were, by and large, inadequate. He was mainly concerned with the repeated prescriptions for medications which were not indicated for the conditions noted. For example, Valium and Pethidine were prescribed inappropriately for urinary tract infections. He was also critical of Dr Pham’s failure to register the number of tablets prescribed in the medical records.
His main concern was that there was a continual prescription for conditions for which these medications were not indicated. He cited an example that Valium and Pethidine had been prescribed for urinary tract infections. He said that the numbers of tablets were not registered in the medical records, merely the frequency of the does and he thought that to be an omission as well.
Dr Seidler thought that there was insufficient attention paid to the education of young undergraduates in respect to prescribing Schedule 8 drugs and noted that such training was confined, usually, to one lecture.
There was a note of sympathy for Dr Pham in Dr Seidler’s evidence when he expressed the belief that there was not enough teaching in the area and thought that a lot of doctors were cast into the suburbs with inadequate knowledge of how to deal with these difficult patients and that once they start treating one or two of this type of patient, in the words of Dr Seidler, “they get a reputation as a soft touch if they begin prescribing and the whole thing just takes off and has its own momentum”.
Dr Seidler said that if the between 5 and 10 patients in his practice being treated for temporal lobe epilepsy, none are in receipt of Rivotril as a medication and all would have had at least an EEG to establish that condition.
He noted the absence in the records of ongoing diagnosis, evidence of reaction to the drugs prescribed and they contain, for the most part, repeats of the prescriptions noted. He was of the view that the nature of the drugs prescribed and the level of the prescribing would tend to indicate, to Dr Seidler, that the patient was drug dependent. He thought that there had been no exercise of any medical judgement in the ongoing prescription of the drugs.
Dr Seidler thought that the combinations of the drugs that Dr Pham had prescribed indicated a certain lack of knowledge of the interactions that these drugs may have and the effects that they may have in combination with opiates are a potentially hazardsous mixture. The patient becomes drowsy and unfocussed and may exhibit bizarre and unusual behaviour. There is a real risk the patient may suffer injury by falling over, or causing a car accident. He believed it likely Dr Pham prescribed on demand; in other words, the patients decided what they wanted and Dr Pham merely wrote the prescriptions. Dr Seidler said when a patient nominates a drug of dependence as a drug of choice, the practitioner should be immediately alerted to the likelihood of the patient being drugs dependent.”
8 The Tribunal also referred to evidence given by Dr Pham, who came to Australia as a refugee in 1979 and was registered as a medical practitioner after he graduated in August 1988. He was an intern at Lidcombe Hospital for one year, “…did his accident and emergency term” at St Joseph’s Hospital, Auburn, and then “went straight into private practice”. Between 1994 and 1996, when most of the professional misconduct occurred, Dr Pham had two practices, one at Bankstown and one at Cabramatta. His usual work day started at 8am, and he would see between 15 and 40 patients per day, six days per week, working at Cabramatta in the mornings and at Bankstown in the afternoons.
9 Dr Pham gave evidence of an acrimonious matrimonial dispute which had commenced in 1992, and that he had diagnosed himself as being depressed as a result of problems associated with that dispute. He did not consult any other doctor in relation to his depression. Nonetheless, he considered that his depression was the main reason “that his judgement had been affected”.
10 An attempt was made by Dr Pham to provide some explanation of some of his professional misconduct, but most was unexplained. Further, the Tribunal “was left with the overall impression that Dr Pham was not being particularly truthful”. In the circumstances, there is little purpose in referring to the content of his evidence save in one respect. To quote from the Tribunal:
“[Dr Pham] said that in regard to Schedule 8 drugs patients would come to his practice in Cabramatta from all over the place from different localities. He said that he did not pay attention to that and thought that it was normal. He said that it was difficult to screen addicts from people having genuine problems.”
11 Later, the Tribunal said:
“When cross-examined by counsel for the [Commission] Dr Pham fared poorly. He said in response to why he did not keep notes of his examinations prior to prescribing drugs, that whilst he did examine his patients, he did not write it down. When questioned as to his prescription of 1000 ephedrine hydrochloride tablets and in relation to their potential for abuse, he said that he did not think about it at the time, that it did not come into his mind. Much of his cross-examination brought forth many such pathetic and evasive answers.”
12 The Tribunal’s conclusions were stated as follows:
“Conclusions
It is to be noted that it was only about two years after his graduation from University and his registration as a medical practitioner that the first warning was given to him by way of letter for over prescribing.
The Tribunal is comfortably satisfied that there are many serious objective factors which call into question the adequacy of Dr Pham’s knowledge, of his skill, of his judgement and care in the practice of medicine. This was not an isolated event. Given the nature of his practice, the Tribunal is of the opinion that the number of patients involved was of significance. The Tribunal also considered that the quantity and range of drugs supplied on prescription illustrated a significant lack of judgement on the part of Dr Pham. Ephedrine hydrochloride is an extreme example.
Another feature of aggravation is the extended period over which time Dr Pham prescribed these drugs and their diversity and in the combinations they were prescribed to various patients. There is more than enough evidence to establish that Dr Pham’s lack of judgement, and/or lack of adequate knowledge of the substances he was prescribing, had significant potential to cause harm to his patients and perpetuate the addiction of those of them who were already addicted to various substances. The Tribunal considered that his failure to inform himself by the reading of materials sent to him from the Medical Board was also a serious flaw in his practice of medicine. Further, the tribunal accepts the submission from the [Commission] that Dr Pham’s medical records were quite inadequate.
There are four areas of conduct which raise deep concerns for the Tribunal. These four areas may be described as:
(i) the vast distances that some of his patients travelled to consult him at his surgeries at Bankstown or Cabramatta, for example Patient “F” came from Sans Souci, Patient ‘A” came from Kirribilli or North Sydney, Patient “I” from Bateau Bay, another according to Dr Pham came from Wollongong;
(ii) the fact that many of his patients nominated their drug of choice which he proceeded to prescribe in vast quantities coincidentally with other contra indicated drugs;
(iii) that Dr Pham too readily accepted the unlikely presentations of many of his patients; and
(iv) that there was a significant risk prescribing in the quantities that he did, the type of drugs that he did, that his patients may have disposed of, at least part of those drugs prescribed, for profit. Ephedrine Hydrochloride is a good example when on 6th May 1995 he prescribed 1000 tablets of 60mg because a patient asked for it.
The members of the Tribunal were not impressed by Dr Pham’s responses as recorded in the transcript of the interview between officers of the Department of Health and himself.
In combination they present compelling evidence that Dr Pham knew or ought to have known that the dispensing of drugs of addiction in the quantity and range that he did, to some of his patients about whom he must have at least suspected, if he did not know for certain, that they were addicted to various types of narcotic substances, was quite wrong. This conduct, in the view of the Tribunal, was most improper and decidedly unethical. The Tribunal is comfortably satisfied on the probabilities that, at worst, Dr Pham was wilfully blind and at best reckless, as to the genuine need for prescribing as he did.
Subjectively Dr Pham is still a young man but with limited post-graduate supervised experience. The Tribunal notes the breakdown of his family and the emotional consequences flowing therefrom, together with the financial stresses which follow such life events. In his favour also is his co-operation with the investigating officers in November 1996 and the fact that he admitted to this Tribunal to prescribing in the range and quantities alleged in the complaint. Subsequent to the interview he no longer prescribes Schedule 8 drugs of addiction.”
13 The warning referred to in the first paragraph of the Tribunal’s “Conclusions” was a letter dated 12 September 1990 from the NSW Health Department to Dr Pham in the following terms:

“I am writing to confirm advice given to you during a recent visit to your surgery by an officer of the Department of Health regarding your prescribing of drugs of addiction.
You will appreciate from this visit that the Department is deeply concerned that addicts are able to obtain quantities of drugs of addiction such as Methadone (Physeptone), Palfium, Endone, Codeine, Percodan, Ritalin and Pethidine by persuading doctors to prescribe these drugs for them. The barbiturates (e.g. Nembudeine) and the benzodiazepines (e.g. Rohypnol, Serepax) although not classified as drugs of addiction are also sought by addicts in a similar fashion.
Addicts use a variety of approaches in attempting to obtain prescriptions for drugs of addiction and apart from openly admitting their addiction, often present with painful or organic illness or injury. You should be particularly alert if confronted by a new patient, especially a young person, who requests treatment with a drug of addiction.
You are reminded that, under section 28 of the Poisons Act, it is an offence to prescribe or supply a drug of addiction for a person whom you believe to be an addict or to supply a drug of addiction to any other patient for a period exceeding two months unless you have an authority from the Department to prescribe that drug for that person. This does not prevent you from accepting addicts as patients or treating them without reference to the Department, provided that treatment does not involve the prescribing of administration of a drug of addiction (see attached list).
However, if you consider that you cannot successfully manage an addict, or a person whom you suspect to be an addict, using treatment regimes available to you, you should refer the patient to one of the addict management facilities set out on the attached Notes for Medical Practitioners.
Trafficking in prescriptions and drugs dispensed on prescriptions obtained in this way has become a major problem. Your co-operation in declining to prescribe a drug of addiction for an addict without authority will help overcome this problem.
Your written acknowledgment of this letter and enclosures is requested.”
14 That letter was received by Dr Pham prior to any of his presently material professional misconduct.
15 The Tribunal noted that it was required to consider whether Dr Pham was presently fit to practice, and that, if it was satisfied otherwise, that it was obliged to remove his name from the register of medical practitioners. The Tribunal also stated that, if a medical practitioner acts recklessly or in disregard of the law in handling and prescribing drugs of addiction, he or she is not fit to be a registered medical practitioner. Such a proposition is plainly applicable to Dr Pham.
16 The Tribunal also said that it was required to take into account the maintenance of the standards of the medical profession and of public confidence in the profession and the protection of the community, but “… also bears in mind the gravity of the consequences of an order removing the name of a medical practitioner from the Register”. The latter observation, together with statements made by the Tribunal in the latter part of its discussions of Dr Seidler’s evidence, including its reference to his “note of sympathy for Dr Pham”, and remarks by the Tribunal in its “Conclusion”, tend to suggest considerable emphasis by the Tribunal on considerations personal to Dr Pham.
17 In this Court, Dr Pham sought to justify such an approach by the Tribunal, and it was submitted that there was evidence before the Tribunal that Dr Pham “… understood the wrongness of his conduct and … had changed the way in which he practised medicine”. Reference was made to 11 matters which it was submitted are to be found in Dr Pham’s testimony. Unfortunately, except to the extent indicated in the above references to the Tribunal’s decision, there is nothing to support the view that the Tribunal accepted any such evidence. As noted above, his evidence was variously described as “not … particularly truthful”, and including “pathetic and evasive answers” to questions asked of him in cross-examination.
18 Dr Pham also argued that the Tribunal’s failure to refer to the importance of remorse and the deterrence of other medical practitioners from professional misconduct, indeed illegal conduct, was not indicative of appealable error.
19 Other submissions made to this Court by Dr Pham were that:
(i) The Tribunal is entitled to take into account “the risk of repetition of the misconduct”. Where practitioners have sought to defend their conduct, or manifested a lack of insight, deregistration has been the appropriate consequence…”.
(ii) “…even in the case of serious misconduct, deregistration and suspension do not necessarily follow if at the time of the hearing present unfitness has not been demonstrated.”
(iii) “The absence of a motive of pecuniary or personal gain is a significant matter …”
(iv) “A perceived lack of frankness in evidence before the Tribunal, even when combined with grossly excessive prescribing, does not answer the essential questions of what is the doctor’s current fitness to practise and what order does the public interest require.”
19 Subject to what follows, those propositions, if correct, are of little, if any, assistance to Dr Pham.
20 The lynch pin of the Tribunal’s decision was its assumption that Dr Pham will obtain suitably supervised employment in a public hospital for a period of at least two years. Although not spelt out, it also seems to be assumed that Dr Pham’s suspension will continue until he commences such employment, and will be reactivated during any period in which he is not so employed until he has been employed under supervision in a public hospital for at least two years.
21 The Tribunal seems to have implicitly determined that, provided that he complies with its restrictions, Dr Pham is unlikely to reoffend within the two years during which he is employed in a public hospital, and that, during that period, he will learn and adopt appropriate patterns of behaviour to which he will thereafter adhere, making him suitable to practise again without restriction after that period.
22 Regrettably, The Tribunal’s decision contains significant inconsistencies, and the conclusion seems unavoidable that the Tribunal was excessively influenced by the consequences of deregistration for Dr Pham and insufficiently attentive to the primary subject of its concern, the protection of the community. Sympathy apparently felt for Dr Pham was entirely misplaced, especially when regard is had to the warning which preceded the presently material professional misconduct, and the nature and extent of that misconduct. It would be absurd in the circumstances to place much weight on Dr Pham’s claims to have discontinued his malpractices to some extent prior to, and otherwise subsequent to, his interview by the Commission in November 1996 in relation to the misconduct which is the subject of the present complaint.
23 The seriousness of Dr Pham’s misconduct and his gross abuse of his position as a medical practitioner are self-evident. Despite warning, he persisted in extremely unethical and illegal conduct over a considerable period. He was heedless of the consequences to the patients affected and plainly motivated by greed. His false testimony to the Tribunal tends to suggest a lack of remorse, and gives no cause for confidence that he will voluntarily behave properly in the future.
24 In my opinion, no order other than deregistration was appropriate, and the orders made by the Tribunal are so unreasonable as to demonstrate appealable error.
25 Further, the Tribunal’s discretion plainly miscarried when it did not order Dr Pham to pay the Commission’s costs.
26 The orders made below should be set aside, and it should instead be ordered that Dr Pham’s name be removed from the register of medical practitioners and that he pay the Commission’s costs of the proceeding in the Tribunal and of this appeal.