In Re Dr Brendan O'SULLIVAN

New South Wales

Medical Tribunal

CITATION:	In Re Dr Brendan O'SULLIVAN [2006] NSWMT 13
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Applicant) Dr Brendan O'Sullivan (Respondent)
FILE NUMBER(S):	40028 of 2005
CORAM:	Walmsley, SC DCJ - Kok, Dr E - Houen, Ms J - Brash, Dr D
CATCHWORDS:	Unsatisfactory Professional Conduct - Schedule 8 Drugs
LEGISLATION CITED:	Ss 36 Medical Practice Act 1992 (NSW) Ss 28 and 29 Poisons and Therapeutic Goods Act 1966 Cls 89 Poisons and Therapeutic Goods Act Regulation 1994
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336; Spicer v New South Wales Medical Board and Ors (unreported, Court of Appeal, 19 February 1981)
DATES OF HEARING:	6 November 2006 - 10 November 2006
EX TEMPORE JUDGMENT DATE :	10 November 2006
LEGAL REPRESENTATIVES:	Mr P Griffin (Applicant) Respondent In Person
ORDERS:	1. The respondent is reprimanded; 2. The respondent is to comply and be involved regularly with the MOPS continuing medical education program of the Royal Australian and New Zealand College of Psychiatrists as determined by that college. The respondent should report such participation to the Board in the schedule of continuing medical education provided at annual renewal of registration; 3. The respondent is to participate regularly in a peer review group and he should report on his participation in a peer review group to the Medical Board when requested to do so by the Board; 4. The Medical Board is the appropriate review body in relation to orders 2 and 3 for the purposes of ss 92 and 93 of the Medical Practice Act.

JUDGMENT:

DEPUTY CHAIRPERSON:

1 This application is concerned with a complaint about the prescribing of drugs by a consultant psychiatrist.

2 In Spicer v New South Wales Medical Board and Ors (unreported, Court of Appeal, 19 February 1981) Hope JA (Reynolds JA and Hutley JA agreeing) said this:

“In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community.”

3 The question for the Tribunal to decide is whether Dr O’Sullivan, (‘the Practitioner’), is guilty of what is known as ‘unsatisfactory professional conduct’ within the meaning of s 36 of the Medical Practice Act (the Act). The relevant subsection of s 36 is as follows:

“Meaning of Unsatisfactory Professional Conduct:

(1) For the purposes of this Act unsatisfactory professional conduct of a registered medical practitioner includes each of the following:

(a) Conduct Significantly Below Reasonable Standard

Any conduct that demonstrates that the knowledge, skill or judgment possessed or care exercised by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.”

4 S 36 of the Act contains a lengthy non-exhaustive definition of ‘unsatisfactory professional conduct’ but we take the Health Care Complaints Commission, (the Commission), to rely on 36(1)(a). Although in the course of earlier proceedings, it was submitted by the practitioner’s former legal representatives that in…