In Re Dr Dietrich Stoermer and the Medical Practice Act 1992
[2004] NSWMT 5
•17 March 2004
New South Wales
Medical Tribunal
CITATION: In Re Dr Dietrich Stoermer and the Medical Practice Act 1992 [2004] NSWMT 5 TRIBUNAL: Medical Tribunal PARTIES: FILE NUMBER(S): 40026 of 2002 CORAM: Graham, DCJ - Child, Dr D - Yeo, Dr G - Collier Ms A CATCHWORDS: "unsatisfactory professional conduct" - "in the practice of medicine" LEGISLATION CITED: Medical Practice Act 1992
Poisons and Therapeutic Goods Act 1966CASES CITED: Daskalopoulos v Health Care Complaints Commission (2002) NSWCA 200 ;
Health Care Complaints Commission v A Medical Practitioner (2001) NSWCA 158 ;
Sabag v Health Care Complaints Commission (2001) NSWCA 411;
Childs V Walton, Court of Appeal, 13 November 1990, unreported,;
Re: R Medical Tribunal, 21 June 2000;
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
Re: Dr Martin James Pollard, Medical Tribunal, 23 May 2001;
Quidwai v Brown (1984) 1 NSWLR 100 ;
Pillai v Messiter 2 (1989) 16 NSWLR 197 ;
Re: Dr TP Davis, Medical Tribunal, 2 December 1994;
Re: Dr MJ Pollard, Medical Tribunal, 23 May, 2001 ;
Bannister v Walton (1993) 30 NSWLR 699;
Gad v Health Care Complaints Commission (2002) NSWCA 111DATES OF HEARING: DATE OF JUDGMENT: 17 March 2004 LEGAL REPRESENTATIVES: Mr P Dodd ORDERS: 1. Dietrich Albert Stoermer is deregistered and his name is to be removed from the Register of Medical Practitioners of New South Wales; 2. The respondent is to pay the costs of the Health Care Complaints Commission, such costs to include costs reserved on earlier adjournment applications; 3. Pursuant to schedule 2 clause 6 of the Medical Practice Act 1992, no publication is to be made of the names of the patients, nor of any material capable of identifying; 4. A sealed copy of these orders and, when available, of the tribunal's reasons for determination and orders are to be served by post on the respondent
JUDGMENT:
JUDGMENT
DEPUTY CHAIRPERSON: 1. These are the reasons for determination
and orders of the medical tribunal.
2. The tribunal has conducted an inquiry into a complaint
into the professional conduct of a registered medical
practitioner, Dr Dietrich Albert Stoermer.
- 3. This inquiry proceeded in the absence of the
practitioner. The tribunal has the power to conduct the
hearing in that fashion pursuant to section 162(3) of the
Medical Practice Act 1992. Hearing dates in July and October 2003
were vacated by the tribunal due to the state of the
practitioner's health. On 29 January 2004 a further
application for adjournment was dismissed and the hearing
dates of 15, 16 and 17 March 2004 were confirmed, despite
further evidence of the state of the respondent's health.
4. At the commencement of the inquiry on Monday, further
consideration was given to whether the inquiry should
proceed. In separate judgments delivered on that day, the
Deputy Chairperson sitting on this inquiry was satisfied,
firstly, that the practitioner had been given proper notice
of the inquiry; and secondly, that no further adjournment of
the inquiry was appropriate.
5. Although this inquiry has proceeded in the absence of
the practitioner from the tribunal hearing, he has,
nevertheless, participated in the proceedings up to this
point. He was represented by a solicitor until earlier this
month and, through that solicitor, was able to participate in
the preparation of the matter for hearing.
6. As is customary, the tribunal had directed that material
proposed to be relied upon by the parties be filed with the
tribunal. The Health Care Complaints Commission had filed
two folders of documents in accordance with that direction,
and the contents of those folders were communicated to the
solicitor for the practitioner. A third folder was filed on
Friday of last week. Material in that supplementary folder related to the
question of service and the filing of documents and included
material of a general nature relating to the provisions of
the Regulations relevant in these proceedings, and including
guides to the relevant regulations prepared for medical
practitioners and notes for such practitioners concerning the
recognition and handling of addicted patients. That material
had not specifically been served on the respondent's
solicitor, but, nonetheless, was clearly admissible material
in these proceedings and, in one respect or another, had been
referred to in earlier dealings with the respondent, or had
been the subject of reference in other material served on
him.
7. Items 2, 3 and 5 to 10 inclusive had all been served
earlier on his solicitors in sufficient time to enable a
response to that material. One category of documents in tab
1 in the supplementary folder had not been served on the
respondent and was not pressed by the complainant when the
inquiry commenced. 8. The respondent, in March 2003,
provided a statement in partial answer to the material which
had been served on his solicitor. He referred to several of
the patients described in the complaint, and, towards the end
of the statement, dealt with some general issues about his
experience and intentions.
9. In addition, material was communicated by way of letter
from his solicitor to the complainant. Apart from
participation in the preparation for the inquiry through his
solicitor, the respondent was interviewed at some length by
officers of the Pharmaceutical Services branch on 18 October
2000, and the respondent also had the opportunity of dealing
with the bulk of the allegations made against him in the
complaint when the matter was promptly referred by the
Medical Board to an inquiry under section 66 of the Medical
Practice Act.
10. The responses of the complainant to the allegations are
recorded in summary form in the decision of the committee
dealing with the inquiry under section 66 of the Act. Those
explanations, contained in the interview and in the section 66
inquiry report, have been taken into account by the tribunal
in considering the complaint in this inquiry.
11. So far as the statement of 21 March 2003, (which is
included in supplementary folder tab 4) is concerned, the
complainant indicated at one of the earlier mentions of the
matter that the respondent would be required for
cross-examination on that statement. Given his state of
health, and his consequent inability to attend for cross-examination, has
led this inquiry to conclude that it would be appropriate to
receive that statement but note that the complainant would
have wished to have cross-examined him. The statement is
unsworn, though a relatively formal document.
12. It is, however, important to acknowledge that, while
receiving that statement, what is contained in it is to be
evaluated in the light of the fact that it has not been able
to be tested by cross-examination.
13. Despite the absence of the respondent from the inquiry
hearing, the tribunal has had some opportunity of evaluating
his version of relevant events through access to those
various statements and responses given by him at different
stages during the inquiry preceding this formal inquiry.
Obviously the tribunal would have had a greater advantage had
he been present to present his case and to give oral evidence
and to be cross-examined upon his earlier statement. But, in
the circumstances, the tribunal considers that it has had a
reasonably full opportunity to assess the respondent's
version of events in considering what findings should be made
on the evidence.
- 14. The Health Care Complaints Commission alleges that the
respondent, being a medical practitioner registered under the
Medical Practice Act, has been guilty of professional
misconduct and/or unsatisfactory professional conduct within
the meaning of sections 36 and 37 of the Act in that the
practitioner has demonstrated a lack of adequate judgment and
care in the practice of medicine and has been guilty of
improper and unethical conduct relating to the practice of
medicine.
15. The allegation of unsatisfactory professional conduct
relies upon that part of the definition of "unsatisfactory
professional conduct" in paragraphs (a) and (m) of section
36(1) of the Act. The particulars of the complaint relate to
eight patients. 16. In relation to the identity of those
patients, an order prohibiting publication of the names or
identifying details of those patients is made by the Tribunal
and in anticipation of such an order, the complaint does not,
in its particulars, specify the names of those patients.
They are, however, identified in a schedule to the complaint,
which enables the Tribunal and the parties to speak as one
when referring to a particular patient by letter.
17. There are eight particulars of the complaint in eight
numbered paragraphs. Each of those paragraphs relates to a
specific patient and each has a number of subparagraphs.
18. The particulars of complaint are as follows:
19. PATIENT "A ": 1(a), between about 2 April 2000 and 25 August
2000, the practitioner prescribed Pethidine 100 milligram
ampoules to patient "A" on the dates and in the quantities
shown on the schedule annexed hereto and marked with the
letter "A", without exercising responsible medical judgment
as to whether it was appropriate to issue such prescriptions;
(b), between about 2 April 2000 and 25 August 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "A" on the dates and in the quantities shown on the
schedule annexed hereto and marked with the letter "A", when
the practitioner knew or ought to have known that the
Pethidine 100 milligram ampoules so prescribed were being or
were likely to be abused; (c), between about 2 April 2000 and
25 August 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "A" on the dates and in the
quantities shown on the schedule annexed hereto and marked
with the letter "A", without obtaining an authority to so
prescribe to patient "A" from the New South Wales Department
of Health, contrary to section 28 of the Poisons and
Therapeutic Goods Act 1966; (d), between about 2 April 2000
and 25 August 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "A" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "A", without making and keeping adequate or
accurate record thereof, contrary to clause 13 of the Medical
Practice Regulations 1998; (e), between about April 2000 and
25 August 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "A" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "A", and made and kept false record thereof,
contrary to clause 13 of the Medical Practice Regulations
1998.
20. PATIENT "B" : 2(a), between about 16 January 2000 and
25 October 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "B" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "B", without exercising responsible medical
judgment as to whether it was appropriate to issue such
prescriptions; (b), between about 16 January 2000 and
25 October 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "B" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "B", when the practitioner knew or ought to
have known that the Pethidine 100 milligram ampoules so
prescribed were being or were likely to be abused; (c),
between about 16 January 2000 and 25 October 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "B" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "B",
without obtaining an authority to so prescribe to patient "B"
from the New South Wales Department of Health, contrary to
section 28 of the Poisons and Therapeutic Goods Act 1966;
(d), between about 16 January 2000 and 25 October 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "B" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "B",
without making and keeping adequate or accurate record
thereof, contrary to clause 13 of the Medical Practice
Regulations 1998; (e), between about 16 January 2000 and
25 October 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "B" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "B", and made and kept false record thereof,
contrary to clause 13 of the Medical Practice Regulations
1998.
21. PATIENT "C ": 3(a), between about 8 February 2000 and
11 December 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "C" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "C", without exercising responsible medical
judgment as to whether it was appropriate to issue such
prescriptions; (b), between about 8 February 2000 and
11 December 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "C" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "C", when the practitioner knew or ought to
have known that the Pethidine 100 milligram ampoules so
prescribed were being or were likely to be abused; (c),
between about 8 February 2000 and 26 October 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "C" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "C",
without obtaining an authority to so prescribe to patient "C"
from the New South Wales Department of Health, contrary to
section 28 of the Poisons and Therapeutic Goods Act 1966; (d)
on 11 December 2000, the practitioner prescribed
100 milligram ampoules to patient "C" in the quantities shown
in the schedule annexed here to and marked with the
letter "C", when his authority to possess or prescribe drugs
of addiction had been withdrawn; (e), between about 8
February 2000 and 11 December 2000, the practitioner
prescribed Pethidine 100 milligram ampoules to patient "C" on
the dates and in the quantities shown in the schedule annexed
hereto and marked with the letter "C", without making and
keeping adequate or accurate record thereof, contrary to
clause 13 of the Medical Practice Regulations 1998; (f),
between about 8 February 2000 and 11 December 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "C" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "C", and
made and kept false record thereof, contrary to clause 13 of
the Medical Practice Regulations 1998; (g), between about
8 February 2000 and 11 December 2000, the practitioner
prescribed Pethidine 100 milligram ampoules to patient "C" on
the dates and in the quantities shown in the schedule annexed
hereto and marked with the letter "C", and made and kept
false record thereof, contrary to clause 13 of the Medical
Practice Regulations 1998; (h), between about 8 February 2000
and 11 December 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient "C" in the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "C" using different names and/or addresses
for patient "A" on prescriptions.
22. PATIENT "D ": 4(a), between about 15 December 1999 and
25 August 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "D" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "D" without exercising responsible medical
judgment as to whether it was appropriate to issue such
prescriptions; (b), between about 15 December 1999 and 25
August 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "D" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "D" when he knew or ought to have known that
the Pethidine 100 milligram ampoules so prescribed were
being, or were likely to be, abused; (c), between about 15
December 1999 and 25 August 2000, the practitioner prescribed
Pethidine 100 milligram ampoules to patient "D" on the dates
and in the quantities shown in the schedule annexed hereto
and marked with the letter "D" without obtaining an authority
to so prescribe to patient "D" from the New South Wales
Department of Health contrary to section 28 of the Poisons
and Therapeutic Goods Act 1966; (d), between about 15
December 1999 and 25 August 2000, the practitioner prescribed
Pethidine 100 milligram ampoules to patient "D" on the dates
and in the quantities shown in the schedule annexed hereto
and marked with the letter "D" without making and keeping
adequate or accurate record thereof contrary to clause 13 of
the Medical Practice Regulations 1998; (e), between about 15
December 1999 and 25 August 2000, the practitioner prescribed
Pethidine 100 milligram ampoules to patient "D" on the dates
and in the quantities shown in the schedule annexed hereto
and marked with the letter "D", and made and kept false
record thereof contrary to clause 13 of the Medical Practice
Regulations 1998.
23. PATIENT "E ": 5(a), between about 28 May 2000 and 11
December 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "E" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "E" without exercising responsible medical
judgment as to whether it was appropriate to issue such
prescriptions; (b), between about 28 May 2000 and 11 December
2000, the practitioner prescribed Pethidine 100 milligram
ampoules to patient "E" on the dates and in the quantities
shown in the schedule annexed hereto and marked with the
letter "E" when he knew or ought to have known that the
Pethidine 100 milligram ampoules so prescribed were being, or
were likely to be, abused; (c), between about 28 May 2026
October 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "E" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "E" without obtaining an authority to do so
to so prescribe to patient "E" from the New South Wales
Department of Health contrary to section 28 of the Poisons
and Therapeutic Goods Act 1966; (d), on 11 December 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "E" in the quantities shown in the schedule annexed
hereto and marked with the letter "E" when his authority to
possess or prescribe drugs of addiction had been withdrawn;
(e), between about 28 May 2000 and 11 December 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "E" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "E"
without making and keeping adequate or accurate record
thereof contrary to clause 13 of the Medical Practice
Regulations 1998; (f), between about 28 May 2000 and 11
December 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "E" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "E" and made and kept false record thereof
contrary to clause 13 of the Medical Practice Regulations
1998.
24. PATIENT "F ": 6(a), on or about 24 January 2001 and 26
January 2001, the practitioner prescribed Pethidine 100
milligram ampoules to patient "F" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter F2 after having been suspended from the
practice of medicine on 18 December 2000 pursuant to section
66(1) of the Medical Practice Act 1992; (b), between about 26
December 1999 and 5 November 2000, the practitioner
prescribed Pethidine 100 milligram ampoules to patient "F" on
the dates and in the quantities shown in the schedule annexed
hereto a marked with the letter "F" without exercising
responsible medical judgment as to whether it was appropriate
to issue such prescriptions; (c), between about 26 December
1999 and 5 November 2000, the practitioner prescribed
Pethidine 100 milligram ampoules to patient "F" on the dates
and in the quantities shown in the schedule annexed hereto
and marked with the letter "F" when he knew, or ought to have
known, that the Pethidine 100 milligram ampoules so
prescribed were being, or were likely to be, abused. (d),
between about 26 December 1999 and 5 November 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "F" on the dates and in the quantities shown in the
schedule annex hereto and marked with the letter "F" without
obtaining an authority to so prescribe to patient "F" from
the New South Wales Department of Health contrary to section
28 of the Poisons and Therapeutic Goods Act 1966; (e),
between about 26 December 1999 and 5 November 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "F" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "F"
without making and keeping adequate or accurate record
thereof contrary to clause 13 of the Medical Practice
Regulations 1998; (f), between about 26 December 1999 and 5
November 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "F" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "F" and made and kept false record thereof
contrary to clause 13 of the Medical Practice Regulations
1998.
25. PATIENT "G ": 7(a), between about 26 December 2000 and
26 January 2001, the practitioner prescribed Pethidine 100
milligram ampoules to patient "G" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter G2 after having been suspended from the
practice of medicine on 18 December 2000 pursuant to section
66(1) of the Medical Practice Act 1992; (b), between about 22
November 1999 and 15 December 2000, the practitioner
prescribed Pethidine 100 milligram ampoules to patient "G" on
the dates and in the quantities shown in the schedule annexed
hereto and marked with the letter "G" without exercising
responsible medical judgment as to whether it was appropriate
to issue such prescriptions; (c), between about 22 November
1999 and 15 December 2000, the practitioner prescribed
Pethidine 100 milligram ampoules to patient "G" on the dates
and in the quantities shown in the schedule annexed hereto
and marked with the letter "G" when he knew, or ought to have
known, that the Pethidine 100 milligram ampoules so
prescribed were being, or were likely to be, abused; (d),
between about 22 November 1999 and 15 December 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "G" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "G"
without obtaining an authority to so prescribe to patient "G"
from the New South Wales Department of Health contrary to
section 28 of the Poisons and Therapeutic Goods Act 1966;
(e), between about 22 November 1999 and 15 December 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "G" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "G"
without making and keeping adequate or accurate record
thereof contrary to clause 13 of the Medical Practice
Regulations 1998; (f), between about 22 November 1999 and 15
December 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "G" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "G" and made and kept false record thereof
contrary to clause 13 of the Medical Practice Regulations
1998.
26. PATIENT "H ": 8(a), between about 30 December 1999 and
13 October 2000, the practitioner prescribed Pethidine
100 milligram ampoules to patient H on the dates and in the
quantities shown on the schedule annexed hereto and marked
with the letter "H", without exercising responsible medical
judgment as to whether it was appropriate to issue such
prescriptions; (b), between about 30 December 1999 and
13 October 2000, the practitioner prescribed Pethidine 100
milligram ampoules to patient "H" on the dates and in the
quantities shown in the schedule annexed hereto and marked
with the letter "H", when he knew or ought to have known that
the Pethidine 100 milligram ampoules so prescribed were being
or were likely to be abused; (c), between about 30 December
1999 and 13 October 2000, the practitioner prescribed
Pethidine 100 milligram ampoules to patient "H" on the dates
and in the quantities shown in the schedule annexed hereto
and marked with the letter "H", without obtaining an
authority to so prescribe to patient "H" from the New South
Wales Department of Health, contrary to section 28 of the
Poisons and Therapeutic Goods Act 1966; (d), between about
30 December 1999 and 13 October 2000, the practitioner
prescribed Pethidine 100 milligram ampoules to patient "H" on
the dates and in the quantities shown in the schedule annexed
hereto and marked with the letter "H", without making and
keeping adequate or accurate record thereof, contrary to
clause 13 of the Medical Practice Regulations 1998; (e),
between about 30 December 1999 and 30 October 2000, the
practitioner prescribed Pethidine 100 milligram ampoules to
patient "H" on the dates and in the quantities shown in the
schedule annexed hereto and marked with the letter "H", and
made and kept false record thereof, contrary to clause 13 of
the Medical Practice Regulations 1998.
- 27. The complainant's case is that the matters
particularised, with exceptions relating to some handwriting
expert evidence, have been proved to a level whereby the
tribunal would be comfortably satisfied on the balance of
probabilities that: one, each particular has been made out
as a matter of fact; two, that, in each particular, the conduct
so proved amounts to unsatisfactory professional conduct on
the part of the practitioner; and, three, cumulatively, at
least , that the unsatisfactory professional conduct, when
evaluated, amounts to professional misconduct.
28. The complainant submits that the practitioner's
professional misconduct revealed in this complaint is so
serious as to require an order for his deregistration. 29. Other
than inferentially, the respondent has not put to this
of the conduct, if proved - that is, as to whether it amounts toinquiry any submission as to how the Tribunal should characterise the nature
unsatisfactory professional conduct and, if it does, whether it would, in
turn, amount to professional misconduct. No specific
submission has been addressed to the tribunal on behalf of
the respondent through the material filed with the tribunal
submitting any particular course of action which the Tribunal ought take
if the complaint is made out.
30. Inferentially, however, the material filed on behalf of
the respondent, while explicitly taking issue with some of
the factual material, implicitly raises issues concerning the
nature of the conduct and puts before the tribunal material
which it must obviously take into account in assessing
whether the conduct amounted to professional misconduct and
whether, if it did, it requires the ultimate sanction of an
order for deregistration.
- 31. As relevant to this inquiry, the Act defines
"unsatisfactory professional conduct" as, including (section
36(1))(a), “any conduct that demonstrates a lack of adequate
knowledge, skill, judgment or care by the practitioner in the
practice of medicine”, and, (m), “any other improper or
unethical conduct relating to the practice or purported
practice of medicine.”
32. The word "adequate" in paragraph (a) introduces an
element of degree. Hence the fact that conduct could be
characterised as an error of judgment does not
necessarily mean that it demonstrates a lack of adequate
judgment, et cetera. That is because people who do not lack
adequate judgment, nevertheless, do make errors of judgment
from time to time: Daskalopoulos v Health Care Complaints
Commission (2002) NSWCA 200 at [59], per Hodgson JA. Thus the
tribunal needs to consider the quality of any error or
mistake: Health Care Complaints Commission v A Medical
Practitioner (2001) NSWCA 158 at [28] and [40-42], per Stein JA.
33. In paragraph (m), the phrase "improper or unethical
conduct" introduces an element of judgment: Sabag v Health
Care Complaints Commission (2001) NSWCA 411, at [82], per
Sperling J. 34. As to what connection must be shown between the
conduct of a practitioner and the practice of medicine, the
tribunal is guided by the construction given by the Court of
Appeal to the expression "in the practice of medicine", as it
appeared in the earlier legislation, the Medical
Practitioners Act 1938.
35. In Childs V Walton , Court of Appeal, 13 November 1990,
unreported, in rejecting an argument that a psychiatrist's
sexual encounter with a patient after the termination of the
professional relationship occurred outside the temporal
boundaries of the expression “in the practice of medicine,”
Samuels JA, with whom the other members of the court agreed,
said at page 9:
"I do not think, with all respect, that this argument is
sound. The phrase 'in the practice of medicine' does not
have a temporal meaning but, rather, a qualitative or
descriptive character. It does not circumscribe the
period during which the conduct impugned must occur, if
it is to be capable of satisfying the prescription; it
describes its nature. The conduct must be such as to
demonstrate the lack of a quality, (for example, adequate
knowledge) necessary in the practice of medicine. The
conduct is the vehicle by which a specified defect is
revealed. Hence the act or omission constituting the
conduct, (see the definition of "conduct" in section
27(1)), need not occur while the relationship of doctor
and patient exists between a complainant and the
practitioner. It may occur at any time. It need not be
conduct which occurs in the course of treating a
patient. The only requirement is that it must
demonstrate one of the specified deficits. It is often
risky to construe by paraphrase, but in this case I
think it is accurate to say that section 27(1)(a)
contemplates conduct by a practitioner that demonstrates
his or her lack of one or more qualities, indispensable
to the practice of medicine; or, in the case of lack of
adequate experience, to the particular procedure
undertaken."
36. In the present inquiry it is clear that the conduct alleged
on the part of the practitioner was conduct which was clearly
within the expression "in the practice of medicine", and,
indeed, occurred, if it occurred, while the relationship of
doctor and patient existed between any of the patients named
in the complaint and the practitioner and occurred in the course of that
of this practitioner in relation to the eight patients mentioned inrelationship It was part and parcel of the practice of medicine on the part
the complaint.
37. The remarks from the judgment quoted above have been
applied by this tribunal in previous cases to the
construction of section 36 in the 1992 Act; see
Re: R Medical Tribunal, 21 June 2000, pages 6 to 7, by way
of example. That approach is clearly consistent with the
protective nature of the jurisdiction exercised by the
medical tribunal as described, for example, in the judgment
of the Court of Appeal in Health Care Complaints Commission v
Litchfield (1997) 41 NSWLR 630, 637:
"Disciplinary proceedings against members of a
profession are intended to maintain proper ethical and
professional standards, primarily for the protection of
the public, but also for the protection of the
profession."
- 38. The complainant alleges that the practitioner's conduct
here amounts not merely to unsatisfactory professional
conduct, but also to professional misconduct. That terms is
defined in the Act as follows:
"37. Meaning of Professional Misconduct . For the
purposes of this Act, professional misconduct of a
registered medical practitioner means unsatisfactory
professional conduct of a sufficiently serious nature to
justify suspension of the practitioner from practising
medicine or the removal of the practitioner's name from
the register.
39. As was observed by Sperling J in Sabag v HCCC at
paragraph 83, the definition of "professional misconduct"
involves a degree of seriousness sufficient to warrant
suspension or deregistration, a matter of degree and
judgment. 40. The definition adopts, as its starting point, a
finding of unsatisfactory professional conduct in breach of
section 36. However, despite the fact that the language used
in the 1992 Act does not purport to adopt precisely the same
standard as was applied prior to the Act in determining
whether a practitioner's conduct amounted to professional
misconduct, the tribunal continues to apply that standard;
see, for example, Re: Dr Martin James Pollard , Medical
tribunal, 23 May 2001 at pages 6 to 7.
41. Accordingly, the Tribunal acts on statements of
principle such as the following in considering whether
unsatisfactory professional conduct amounts to professional
misconduct:
- (a) "Whether the practitioner was in such breach of the
written or unwritten rules of the profession as would
reasonably incur the strong reprobation of professional
brethren of good repute and competence,” Quidwai v Brown
(1984) 1 NSWLR 100 at 105 per Priestley JA."
- (b) "Departures from elementary and generally accepted
standards of which a medical practitioner could scarcely
be held to say that he or she is ignorant could amount
to professional misconduct. But the statutory test is
not met by mere professional incompetency or by
deficiencies in the practice of the profession.
Something more is required. It includes a deliberate
departure from accepted standards or such serious
negligence as, although not deliberate, to portray
indifference and an abuse of the privileges which
acccompany registration as a medical practitioner. In
giving meaning to the phrase 'misconduct in a
professional respect’, in the context in which it
appears, it must be kept in mind that the consequence of
an affirmative finding is drastic for the practitioner.
And the purpose of providing such a drastic consequence
is not punishment of the practitioner, as such, but
protection of the public. The public needs to be
protected from delinquents and wrong-doers within
professions. It also needs to be protected from
seriously incompetent professional people who are
ignorant of basic rules or indifferent as to rudimentary
professional requirements. Such people should be
removed from the register or from the relevant role of
practitioners, at least until they can demonstrate that
their disqualifying imperfections have been removed.":
Pillai v Messiter 2 (1989) 16 NSWLR 197 at 200-201, per
Kirby P.
42. The tribunal's understanding of those principles is
expressed in a number of decisions commencing with Re :
Dr TP Davis , Medical Tribunal, 2 December 1994. The tribunal
has regarded as a pre-requisite for a finding of professional
misconduct a finding that the practitioner has conducted
himself or herself in a manner which attracts the severe or
strong disapproval of peers of reputable standing; see, for
example, Re: Dr MJ Pollard , Medical Tribunal, 23 May,
2001 at 7, or has been guilty of 'conduct so obviously wrong
that a peer who did not strongly disapprove would not be
thinking reasonably'. See Re: Dr TP Davis at page 6.
However, a practitioner who acts on a "respectable minority
view" as to what is acceptable conduct, especially in the
actual practice of medicine, cannot be said to be guilty of
professional misconduct: Quidwai v Brown (1984) 1 NSWLR
100-102 Hutley JA.
43. The standard of proof to be applied by the tribunal in
determining this complaint is the civil standard of proof on
the balance of probabilities, but qualified by the gravity of
the question to be determined, particularly the seriousness
of the allegations made, the inherent unlikelihood of an
occurrence, or the gravity of the consequences flowing from a
particular finding. This requires the tribunal to be
comfortably satisfied, on the balance of probabilities, that
the complaint is established. See, for example, Bannister v
Walton (1993) 30 NSWLR 699, 711-712; Health Care Complaints
Commission v Litchfield (1997) 41 NSWLR 630 at 635.
44. Each particular of a complaint must be considered
separately by the tribunal to determine whether the
complainant has been able to establish that particular to the
requisite standard of proof, including whether that
particular, if so made out, amounts to a breach of sections
36 or 37 of the Act.
45. Having considered all of the particulars of a complaint
through that individual and separate exercise for each particular,
the tribunal may then consider all of the practitioner's
conduct which has been found to have been so established in
order to evaluate the totality of that conduct with a view,
for example, to determining whether the whole of that conduct
amounts to professional misconduct.
46. In any event, the tribunal is bound to consider the
whole of the practitioner's conduct (as well as other
relevant matters such as prior disciplinary action,
character, et cetera) in arriving at the ultimate sanction to
be imposed: Gad v Health Care Complaints Commission (2002)
NSWCA 111 at paragraph 55 per Stein JA.
GENERAL BACKGROUND
47. The tribunal has sought to piece together, from various
aspects of the material before it, the general background of
the practitioner in so far as it can be ascertained in his
absence. Some assistance is provided by a curriculum vitae
which he provided to the Pharmaceutical Services Branch
investigators in October 2000.
48. He was born in Germany, or what was then part of
Germany, on 6 September 1936. His family fled the advancing
troops of the Soviet army to the middle of Germany in 1944,
and lived in straitened and circumstances with relatives there
until the end of 1947 when the family fled through the Iron
Curtain to West Germany.
49. Having lost three years of schooling, he commenced high
school in West Germany but left West Germany in 1954 with his
father and his brother. When they arrived in Queensland, the
practitioner worked as a gas pipe layer. He could not speak
any English at that stage. He later moved to Sydney and
worked as a tram conductor for 12 months and worked in
asbestos spraying for 12 months. Eventually his mother and
remaining siblings followed the family to Australia and they
stayed in a hostel for two years. They bought a cottage in
Campsie and the respondent attended Sydney Technical College
at night and obtained his Leaving and Matriculation
Certificate for entry into the medical faculty.
50. He studied medicine between 1959 and 1966. The
certificate of registration indicates that he holds the
qualifications of Bachelor of Medicine, Bachelor of Surgery,
from the University of Sydney, and became a fellow of the
Royal Australian College of General Practitioners in
Australia in 1974. He was first registered as a medical
practitioner in New South Wales on 23 December 1965.
51. During his university studies, and for some time
thereafter, he was able to sustain himself as a musician
playing at night between 1958 and 1968 but, apparently,
continued those musical activities into the 1990s. After
graduation, he did junior and senior residency apparently at
Royal Prince Alfred Hospital, to which he had been attached
while a student.
52. In 1968, he says that he opened a general practice in
Campsie until 1970 when he became pediatric registrar at
St George Hospital for six months, following which he was a
medical registrar at Parramatta Hospital for one year. He
says he then went to the United States where he worked as an
emergency physician until 1985. During this time, he spent
one year in industrial medicine working for Dow Chemicals in
Houston, Texas.
53. He says that he opened a general practice in 1985
specialising in emergency medicine and surgery. He also said
that he had been Board certified in Australia as a Fellow of
the Royal Australian College of General Practitioners.
54. Further details of his history and experience are to be found
in the material before the tribunal, including material which
he provided through his solicitors in 2003.
55. In that statement, he indicates that, since he
commenced practice, he has carried out duties as a medical
practitioner in a number of overseas countries and has been
subject to numerous jurisdictions and treatment methods. He
said that he worked for the Vietnam Veterans Administration
from 1974 to October 1975 in the United States Army and
served in Vietnam between December 1974 and April 1975. He
served in Saigon until the surrender of that city and was
wounded twice.
56. He claims he was the first doctor in the United States
to diagnose the first female patient with AIDS in 1983. He
also says there are instances, including one specific one,
where he can prove that he had assisted with the diagnosis of
patients. He says that he has treated many patients freely if
they did not have any money, in the United States. He claims
to have always followed the Hipppocratic oath which he took
when he commenced in his profession.
57. He says that he has had 25 years of extensive
“hospital-based medicine”, including severe trauma and assisting
in surgery; he was first assistant from open heart surgery to
orthopaedic and/or other forms of surgery, and admission of
patients under his care.
58. He states, "I have never had any malpractice cases against me
either in the United States of America or in Australia."
He was apparently anxious to have that statement communicated to the
complainant by his solicitor in a letter as well. Whilst that
assertion may be literally correct, it does not disclose or
reveal his full history as a medical practitioner in the
United States.
59. As of October 2000, he stated that he “presently” held
a medical licence in Nevada. He appears to have been away
from Australia from sometime in the early 1970s until
sometime in the mid-1990s. In his interview with the
Pharmaceutical Services Branch he indicated that he
returned to Australia in late 1994; but in his curriculum
vitae he says that he returned to Australia in 1996.
60. Prior to that, however, there had been some difficulties
with his registration in Nevada. That is obviously a matter
which is relevant in considering what orders might be made in
the event that the tribunal is satisfied the complaint has
been made out. But it is relevant, also, in considering the
state of knowledge and belief of the practitioner when the
alleged misconduct in question here is said to have taken
place. In 1993, he was before the Nevada Board of Medical
Examiners which conducted an inquiry into a complaint which, in
some respects, was similar to the type of complaint now before
this tribunal.
61. In the opinion of this tribunal, his experience in
relation to that complaint ought to have brought home to him
the need for care in keeping records and in prescribing drugs
of addiction for patients who may be addicted to, or
dependent upon, such drugs. On that occasion, not all of the
complaints were made out. But the Nevada Board, on that
occasion, found in respect of three patients that he had
failed to make medical records available for inspection
within a reasonable time, as required by Nevada law.
62. The board then found, in relation to one patient, that,
on the basis of that patient's medical condition, medical records - and
taking into account the respondent's evidence - concluded
that no medical justification was established for prescribing
Percodan, a schedule 2 controlled substance in Nevada, in
such large amounts for the time period of January 1990 to
August 1992.
63. In respect of five other patients, the board took into
account the medical conditions suffered by those patients,
which produced chronic and incessant pain, which, in the view
of the Board, could have justified the regular and continual
prescription of controlled substances to them.
64. Accordingly, the board found that there was insufficient
evidence "based upon the standard of clear and convincing
evidence" to show that the practitioner had prescribed to these
patients controlled substances in such excessive amounts as to
constitute a departure from prevailing standards of
acceptable medical practice.
65. Thus, whilst the Board on that occasion found that some
elements of the complaint had been made out, it was not
satisfied in respect of others. And the board found that
there was insufficient evidence of repeated malpractice or of
continual failure to exercise the skill, diligence or use of
methods ordinarily exercised under the same circumstances by
physicians in good standing practicing in the same specialty
or field as alleged in two counts in that complaint.
66. The Board of Medical Examiners ordered that a letter of
reprimand be issued for failure to make medical records
available and ordered that his medical licence be restricted
in relation to writing prescriptions for schedule 2
controlled substances. That privilege was suspended until
further order and he was ordered to attend and complete
continuing medical education courses approved by the
secretary of the Board of Medical Examiners on pain
management, including specific instruction on prescription
writing and medical documentation and record keeping
practices.
67. A formal letter of reprimand was sent to him on 16 March
1993. He had appeared at the hearing of the inquiry. In
those circumstances, the nature of the proceedings and the
complaints made against him in those proceedings and the
orders which followed that inquiry must have brought home to
any responsible and reasonable medical practitioner the need
for particular care in the prescription of substances which
might be used by persons dependent upon them and the need for
careful consideration of the writing of a prescription for
such persons and for such drugs, and of the need to keep
proper documentation and records in relation to those
matters. A formal hearing followed by orders of that type,
and a formal letter of reprimand are unlikely to have
impressed any responsible medical practitioner as being
anything other than a serious warning requiring constant
vigilance in the future. 68. If the experience in the state of
Nevada did not impress itself upon the respondent, then it
appears that something similar might be said of his dealings
with the Pharmaceutical Services Branch in 1997.
69. In the main, the conduct before this tribunal relates to
periods during the year 2000, but the conduct alleged in
relation to the year 2000 is, in many respects, quite similar
to matters which were drawn to the practitioner’s
attention, by officers of the pharmaceutical
services branch in October 1997.
70. Volume 1 at tab 9 includes material relating to that
earlier investigation. From various sources it came to the
attention of the department that the respondent's prescribing
practices needed to be addressed. A number of prescriptions
had been collected in relation to another case involving a
person known to the department and the respondent's
prescribing pattern in relation to that patient brought about
a need to discuss the matter with the respondent.
71. Before doing so, the drug register of the pharmacy
adjoining a medical practice to which the respondent was then
attached was inspected on 15 October 1997. 288
prescriptions for drugs of addiction for various patients
written for the time period between October 1996 to 15
October 1997 were collected. They were collated, along with
patient profiles for some nominated persons and the details
were checked against departmental records. There were about
a dozen patients of particular interest or note.
72. One of those was patient "F" in the present inquiry, for
whom some ampoules of Pethidine had been prescribed by the
respondent between November 1996 and February 1997. She is
described in the 1997 report as a person well-known to the
department as a "doctor shopper", who had previously been on
the methadone program in 1991. Another doctor currently held
an authority for the prescription of Pethidine for that
particular patient.
73. Another patient named in the list is patient "H" for
whom 21 ampoules of Pethidine had been prescribed by the
respondent between December 1996 and January 1997. In
respect of that patient, the respondent then held an
authority to prescribe five ampoules every 14 days. 74. With
that information, the officers of the branch spoke to the
respondent for about an hour. They dealt with a number of
the persons named in that list. There was some discussion,
according to the report, of patient "B", there was discussion
of patient "H", and, in summary, an officer of the branch told
Dr Stoermer that he had a reputation all over Sydney, that his
prescriptions were widespread, and that he must be one of the
top Pethidine prescribers in Sydney.
75. Dr Stoermer seemed quite surprised with that news,
according to the report. The officer explained that
Dr Stoermer was going to have to start making changes to his
prescribing practices and would have to do so soon. He also
reiterated a number of issues which had been raised in the
course of the discussion. Firstly, that it was the doctor's
responsibility to maintain or oversee the maintenance of his
entries in the drug register; two, that he had to comply with
the stipulations of section 28 of the Poison and Therapeutic
Goods Act 1966; thirdly, that once an authority was held, he
needed to comply with it. Fourthly, that he needed to comply
with clause 57 and, finally, that he needed to recognise
addict behaviour and could not be taken in by their stories
or allow them to nominate their drug of choice.
76. In response to that, the report records that the
respondent told the officers that he would alter his
prescribing habits. He was informed that a report would be
written up and that a letter would be sent to him to
reinforce what he had been told. He told the officers that he
would learn to say “no” to all of them. An officer emphasised
that he could call the department if he had any questions.
He was also informed that, if he felt that it would be too
hard to say no, the department could withdraw his authority
to prescribe drugs of addiction, thus losing his burden.
77. The report, in its summary, included an assertion that
it was apparent that, in most cases, in relation to the vast
number of prescriptions collected as a sample of his
prescribing practices, he was in breach of section 28 of the
Poisons and Therapeutic Goods Act. He was said to prescribe
to addicts without prior approval, disregard getting approval
for any non-addicts with continuous use over two months, and
failed to comply with applicable limits.
78. The report records that, at the interview, he was
counselled as to his obligations to properly maintain a drug
register, the restrictions that apply to the prescribing of
drugs of addiction under section 28 of the Poisons and
Therapeutic Goods Act 1966, the process for the issuance of
authorities, the need to comply with such authorities, the
tactics adopted by addicts and the need to prescribe in
accordance within the normal therapeutic standard.
79. A letter was subsequently sent to him confirming that
advice and making it clear that he would have already
appreciated, from the visit, that the Department of Health was
deeply concerned that some patients who may be addicted are
able to obtain quantities of drugs of addiction, such as
Pethidine and Methadone, (Physeptone), by persuading doctors
to prescribe these drugs for them. The letter also pointed
out that some patients similarly sought Benzodiazepines, although
they were not classified as drugs of addiction.
80. The letter also pointed out that addicts used a variety
of approaches in order to obtain prescriptions, and often
presented with painful or organic illness or injury. The
doctor was advised in that letter that drugs prescribed by
him, if he acceded to such requests, may, in themselves, not
be excessive but may well contribute to the pool of drugs
obtained, leading to excessive dosage and dependency.
81. He was reminded that, under section 28 of the Act it was
an offence to prescribe or supply a drug of addiction for a
person whom he believed to be an addict, or to supply a drug
of addiction to any other patient for a period exceeding two
months, unless he had an authority from the department to
prescribe that drug for that person.
82. It was made clear that it did not prevent him from
accepting addicts as patients or treating them without
reference to the department, provided that the treatment did
not involve prescription or administration of a drug of
addiction, a list of which was attached to the letter.
83. Such a list, undoubtedly, was compiled by reference to
Schedule 8 and it clearly includes all forms of Pethidine,
including for veterinary use. The letter went on to remind
the practitioner of a number of other matters, particularly
the requirements that restricted substances were not to be
prescribed in a quantity or for a purpose that did not accord
with the recognised therapeutic standard of what is
appropriate in the circumstances. It went on to inform him
that the abuse of drugs of addition, and Benzodiazepines,
including the injection of solutions obtain from tablets
and/or capsules, and the trafficking in prescriptions of
drugs obtained on prescription had become, by then, a major
problem.
84. It is unnecessary to refer to the rest of the letter,
except to make clear that it reminded him of the requirements
of maintaining a register to record the receipt and
disposition of drugs of addiction, and the document also
enclosed two documents which are included in the
supplementary folder - that is, the department's "Guide to
the Poisons and Therapeutic Goods Legislation For Medical
Practitioners and Dentists" and the "Guide to Recognising and
Handling Addicts, Notes For Medical Practitioners". It also
provided him with a contact person and phone number in the
department should he need further information or
clarification.
85. That episode must have alerted the practitioner, not
only to the specific requirements for dealing with drugs of
addiction and with addicted patients applying to medical
practitioners in New South Wales, but must, in the light of
his earlier experience in Nevada, have reinforced in any
reasonable or responsible medical practitioner the need for
scrupulous observance of these requirements imposed upon
medical practitioners.
86. He had been specifically counselled and advised as a
result of an episode of what appeared to be over-prescribing
of such drugs. This was in addition to the dissemination of
general information to medical practitioners, drawing their
attention to such problems. He had been singled out for this
investigation because of his prescribing habits. They were
discussed with him in relation to specific patients,
including two who are included in the list of patients on the
present complaint.
87. Furthermore, he had been advised as to the requirements
by way of exercise of responsible medical judgment, and of
notification, record-keeping and the obtaining of authorities
required in order to deal with such patients. That was
followed up by the letter and its enclosed information.
88. This was a serious episode and any responsible medical
practitioner would have regarded it as a very clear warning
of the need to tread very carefully in dealing with the
prescription of drugs of addiction, particularly to persons
who were, or may have been, addicted to, or dependant upon, such
drugs.
89. The practitioner subsequently went to Queensland.
Again, there is some measure of uncertainty as to precisely
what period was covered by that move to Queensland. It seems,
according to his conversations with the Pharmaceutical
Services Branch people in October 2000, to have
covered a period between March 1998 and some time in
mid-1999. There are other references suggesting that it may
have been later in 1999, before he returned to practice in
New South Wales.
90. There are some references in the material before the
tribunal to some investigations and/or counselling by
authorities in Queensland during that period. The
supplementary folder of documents included some material as
tab 1 in that folder, including documents from the Queensland
Drugs of Dependance Unit file relating to this practitioner.
It seemed to the Deputy Chairperson that the complainant
given that it had not been served on the respondent.
might not properly be able to rely upon that material,
Counsel for the complainant, indicated that, in the light of its
non-service, he was not disposed to press its tender and, thus,
the material has not been considered by the tribunal.
91. The Deputy Chairperson is responsible for decisions
relating to questions of evidence and procedure and in that
guise, the Deputy Chairperson sitting on this tribunal
considered the material for the purpose of determining
whether it might be acted upon by the tribunal. For example,
if there was material in it which might have been of
assistance to the practitioner, then it may be that the
tribunal might have required that it be tendered or may have acted
upon it, in any event.
92. Suffice it to say that, in the view of the Deputy
Chairperson, the material in that part of the supplementary
folder would not have assisted the practitioner and, thus, no
decision was taken to require that material to be formally
tendered in the inquiry, and the tribunal has not, in those
circumstances, been able to take into account that material
as part of the evidence in this inquiry.
93. In any event, the practitioner did return to New South Wales
and it was during that episode, in late 1999 through to early
2001, that the matters presently before the inquiry arose.
94. There are some disturbing features of that material.
Clearly, the allegations relate to conduct of a broadly
similar kind to that which had come to the attention of the
authorities in 1997 and in respect of which the respondent
had been clearly reminded of his responsibilities as a
medical practitioner. That was at a time not very long before the
course of conduct alleged here is said to have commenced.
95. Thus, that 1997 episode undoubtedly would have been
fresh in his mind, at least in general terms, when he resumed
practice in New South Wales. He was investigated and, in
October 2000, the investigations stepped up and he was
Approached, interviewed and he offered to surrender his
authority to prescribe drugs of addiction. The complaint, in
some evidentiary aspects, deals with the way in which the complainant went
about his practice in the period between his indication of a
voluntary application for withdrawal of that authority, and
the time it actually took effect.
96. The complainant's case is that, during that period,
despite the advice which had been given in the course of the
interview and his own apparent recognition of the
desirability of his surrendering such authority, he took
advantage of the period between the indication of his wish to
withdraw the authority and that process being finalised (by
service of a notice of that revocation on him) to continue his
practice of prescribing to addicts.
97. Further investigations were conducted and the matter was
referred, promptly, by the Medical Board to an inquiry
under section 66 of the Medical Practice Act, which led, on
18 December 2000, to the practitioner's registration being
suspended.
98. As at the date of the certificate under section 192A of
the Medical Practice Act issued by the Medical Board
Registrar on 18 June 2003, the respondent remained suspended.
The suspensions have apparently continued in accordance with
the legislative regime, from time to time, since December 2000
and the respondent remains suspended as at the present time.
99. It is clear that the practitioner, at about the time of
his suspension, moved to the United States. The evidence
before the Tribunal raises a distinct possibility that he has
been, and is, in medical practice in the United States. The
Tribunal, however, could not be comfortably satisfied that he
is presently in practice, or has been in practice in the
United States since leaving Australia after his suspension on
18 December 2000. There are, certainly indications which
tend to suggest that he might have been able to practice in
Nevada during that time.
100. In his curriculum vitae, handed over on 18 October 2000,
he states that he “presently” held a medical licence in Nevada.
The Tribunal has been provided with copies of material from
the Nevada authorities, including two bi-ennial registration
renewal applications from the practitioner. The first was
received by the Nevada State Board of Medical Examiners on
28 June 2001. It indicates an address in Las Vegas, Nevada,
for the respondent, though it does not anywhere indicate any
practice address. The address is simply a street address.
It does, however, apply for a renewal of registration which,
itself, leads to the inference that there had been some
existing registration which could be the subject of a renewal
application.
101. The respondent sought renewal on the basis of “active
status”. “Inactive status” was an option, but that was not the
choice made in filling in the form. That form failed to
disclose the earlier history in Nevada in 1993, nor did it
disclose that the respondent was then subject to a suspension
of his New South Wales registration, a topic clearly covered
by the requirements of the renewal form. He did, however,
check the box, "Have not actively practiced medicine in
Nevada within the past 12 months".
102. In 2003, it appears that he sought further renewal. An
application from him giving the same street address in Las
Vegas and dated 20 June 2003 was received by the board, again
seeking renewal for a two-year period of his registration on
the basis of “active status”. According to that application,
he marked the box indicating that he had actively practiced
medicine in Nevada within the past 12 months. In that form,
he also referred, fairly cryptically, to the 1993 proceedings
before the Board of Medical Examiners, and also indicated
that he was affected by the question, "Have you ever
surrendered your state or federal control substance
registration or had it revoked or restricted in any way?" His
answer was, in handwriting, "DEA was not renewed 1994."
103. On the other hand, material obtained by the Health Care
Complaints Commission from the Nevada State Board of Pharmacy
confirms that Nevada law requires a practitioner to be a
controlled substance registrant in that state in addition to
holding US Drug Enforcement Administration controlled substance
registration for the purpose of prescribing, possessing,
administering or dispensing controlled substances. His
registration was “closed” in Nevada in 1994 due to his apparent
failure to renew.
104. The Board of Pharmacy made some inquiries with the Los
Angeles DEA office and the Nevada State Board of Medical
Examiners revealing, that in mid-2002, he had made an
application to the Nevada State Board of Pharmacy for a state
controlled substance registration. The application was
incomplete and the registration was not issued. The DEA Los
Angeles office indicated that he had applied for federal DEA
registration in August 1999 but that was denied and the
application was "retired".
105. He again applied for DEA registration in October 2002.
That application was submitted for field investigation and, as
at June 2003, had not been approved. A notice had been
issued in 1994 by the DEA to show cause for relinquishment of
registration. 106. In those circumstances, as remarked earlier,
there is a distinct possibility that the respondent has
practiced in Nevada at some stage since he left New South
Wales about the end of 2000, but the tribunal could not be
comfortably satisfied that that is the case, nor that, if he
had recommenced practice in Nevada, he has continued to
practice in that state.
107. Certainly, his prescribing rights would seem to have been
somewhat restricted by virtue of the absence of appropriate
registration with state or federal authorities in the United
States. The respondent does, however, appear to be residing
in the United States. Material relating to his medical
condition has emanated from a Nevada practitioner, and indications from
position.material emanating from the respondent himself seem to confirm that
108. In his statement of 21 March 2003, the respondent does
not indicate whether he was then in practice. He does,
however, say, in paragraph 11 of that statement, "I would
still like to practice medicine as I can offer help to
patients. I am prepared to relinquish class 8 Pethidine and
other drug prescribing privileges."
109. He intended to return to Australia because he was
educated in this country though he had lived in the United
States of America. His marriage to an American citizen has
now been dissolved. 110. In the absence of further information from
the respondent, it is difficult for the tribunal to set out
any other part of the respondent's background which might be
of assistance in determining the issues in this inquiry.
PEER REVIEW EVIDENCE
- 111. On 26 March 2001, the Health Care Complaints Commission
requested a peer review report from a general practitioner,
whose identity was initially not disclosed in the folder of
material, but has been disclosed in the supplementary folder.
Dr Joy Mowbray practices in the southern suburbs of Sydney
and her curriculum vitae sets out her experience over the
last 20 years or more, in general practice. Since 1992,
she has been the principal in a general practice in suburban
Sydney.
112. The letter requesting that report (tab 16 in volume 1 of
the documents) sets out some of the background to the issues
in this inquiry and forwards a substantial number of
documents to Dr Mowbray. Whilst she did not have the transcript of the
investigation interview on 18 October 2000 available to her,
she certainly had material which adequately summarised the
effect of that conversation and of those investigations. She
also had opportunity to consider the section 66 inquiry
report of 18 December 2000 and other documents, which, the
tribunal is comfortably satisfied, adequately informed
Dr Mowbray of the circumstances which are reflected in the
evidence now tendered to support the complaint.
113. It is appropriate to deal with her evidence at this
stage in that her conclusions were not necessarily directed
to the specific patients, but deal, in a more general way, with
the topics raised by the complaints as they concern each of
the particular patients.
114. The only potentially material omission from the documents
which were available to Dr Mowbray is the material forwarded to the
complainant by or on behalf of the respondent in March last
year. As will shortly be seen, the absence of that material
makes little difference, in the view of the tribunal, to the validity and
acceptability of the views expressed by Dr Mowbray.
115. She expressed the opinion on 27 May 2001 that
Dr Stoermer had fallen below an acceptable level of care on
numerous occasions. She set out those conclusions under a
number of numbered paragraphs. Paragraph 1:
"Despite being counselled in 1997 re his prescribing
habits he continued to prescribe for patients whom other
prescribers held authorities, known doctor-shopper
patients whom the PSB had previously warned him against
prescribing for without an authority and known drug
addicts."
Paragraph 2:
"The amount and frequency of drugs prescribed is far
beyond normal general practice for the treatment of any
medical condition."
116. In respect of each of those points she said that they would
attract a severe degree of disapproval. Such a level of
disapproval brings those matters within the type of matters
which would attract the finding of professional misconduct.
117. Paragraph 3:
"His ability to keep accurate medical notes is
inadequate as he has prescribed large quantities of
Pethidine, for example, when the patient's file does not
state this at all. For example, in PSB investigation of
6/11/2000 it is stated that during visits to the Blue
Cross Medical Centre, Kingsgrove, the Crescent Medical
Centre, Fairfield, and Dr Cywinskis's surgery at
Austral, most of the Pethidine and benzodiazepine
scripts prescribed for these patients is unrecorded.
The records that do exist are incomplete, (no
directions, no quantities, sometimes cryptic
abbreviated, eg P*10 for Pethidine 100 milligram
ampoules)."
118. Dr Mowbray's view of that aspect of the case is that it would
attract moderate disapproval. In the context of these
proceedings, in the event that the matters in the particulars
are made out, the tribunal is of the view that having regard
to previous history of being counseled and advised about
these matters, the level of criticism which would be
appropriate on this point would not be the moderate level
expressed by Dr Mowbray, but, rather, a severe level of
disapproval.
119. If the particulars are made out in respect of the
various patients, then it represents a deliberate course of
conduct and a deliberate attitude of indifference to the
requirements for the keeping of medical notes. Clearly, it
is vital that records in relation to the prescription of
drugs of addiction be kept carefully and scrupulously. The
importance of such records was the subject of submissions on
behalf of the Healthcare Complaints Commission in this
inquiry, submissions which this tribunal would adopt.
120. Clearly, any pattern of false, misleading or incomplete
progress notes, where drugs of addiction are concerned, is a
matter of considerable seriousness. Such progress notes are
central to proper medical practice, both in general terms,
and, more particularly, when dealing with addicted or drug
dependent patients, where those patients are continually
seeking drugs such as Pethidine and where the overwhelming
majority of medical opinion regards such prescribing in the
particular circumstances as being an inappropriate method of
treatment.
121. Where such drugs are prescribed without a proper medical
basis, and the notes kept are false or incomplete, the effect
of such notes can be the misleading of other practitioners
who may come into contact with the patient. 122. For those
reasons, and given the considerable length of experience of
the practitioner, and the counseling and advice given to him
in 1997, a finding as to the matters in point 3 of
Dr Mowbray's report would, in the view of this tribunal,
amount to a finding of activity that would attract a severe
level of disapproval rather than the moderate level specified
by Dr Mowbray.
123. Point 4 related to a doctor's emergency bag order which
has not found its way into the subject matter of the
complaint. It appears to relate to a particular incident.
124. Item 5:
"Following further counselling on 18/10/2000 he did not
adhere to the advice at all and actually continued to
prescribe on that very night, for example."
She identifies patients E, F and G.
125. Whilst Dr Stoermer still held an authority to prescribe
drugs of addiction at that time, it is clear that as a result
of the conversation on 18 October 2000, his continued
exercise of the right under that authority until it was
formally revoked some days later, must be regarded as
conduct, if established, which was completely contrary to the
specific advice given to him on that date, and contrary to
all that had been told in 1997 and all that had emerged in
the course of discussing his prescribing habits with the
officers of the pharmaceutical services branch on 18 October
2000.
126. The reason for that, essentially, was that the continued
prescribing without specific authority to those patients was
by then clearly known to the practitioner as being inappropriate and unlawful
him on that occasion.and effectively amounted to a flagrant defiance of the instructions given to
127. Dr Mowbray's assessment is that that conduct would
attract a severe disapproval and the tribunal would accept
that, if established, that is the appropriate categorisation
of that conduct.
128. Item 6:
"Dr Stoermer has prescribed large quantities of
benzodiazepine to a patient who shares his home address
and once again has no proper documentation for this
therapy."
129. That item attracted moderate level of disapproval, but is not
of itself one of the specific items of complaint. Evidence
to that effect emerged in the course of the investigations
and itself indicates a laxity in the respondent's approach to
prescription of drugs such as benzodiazepine, which had been
identified to him in 1997 as drugs which, whilst not
classified as drugs of addiction, were subject to similar
patterns of abuse and doctor shopping and the like. 130. Item 7:
"Dr Stoermer admitted that he knew patient "D"
- had forged his Pethidine scripts, but he had
not recorded this fact and continued prescribing
Pethidine for him."
That attracted a mild degree of criticism from Dr Mowbray.
That item is, of course, but part of the overall picture in
relation to patient "D" and of the overall picture of the
respondent's prescribing to the various patients who are the
subject of this complaint. 131. Item 8:
"The patient "F" was a good example of Dr Stoermer's
worrying prescribing habits, eg, he wrote two separate
scripts for Pethidine on the same day on several
occasions but in a different pen, these large amounts
never necessary in a general practice setting. "F" was
also prescribed 120 pseudoephedrine tablets in two days
because she 'said there was a special on it, or
something'".
132. The usual dosage is approximately two tablets a day for
rhinorrhoea. His documentation of "F's" file from 22/7/2000
until 14/10/2000 was inaccurate as he wrote, "Pethidine
refused", but actually was prescribing from five to 15 x 100
milligram ampoules on each occasion. That was a
point which attracted severe disapproval on the part of Dr
Mowbray. And the tribunal would accept that properly
reflects the level of disapproval which would attach to
activity of that type. 133. Item 9:
"Following further counseling on 18 October 2000,
Dr Stoermer was still prescribing addictive drugs
illegally. He had requested the director-general of
health to withdraw his authority to prescribe or possess
drugs of addiction. That withdrawal took effect on
26/10/2000. Following reading Peter Gilfedder's report
dated 21/11/2000, I believe Dr Stoermer's behaviour was
inappropriate. He was still supplying drugs of
addiction on demand to drug dependent people and
attempting to hide the fact by leaving the surgery to
write prescriptions creating no records, or false
records, and falsely dating prescriptions."
Like Dr Mowbray, the tribunal would regard conduct of the
type described in that point, if established, as attracting a
severe degree of disapproval.
134. Point 9 also attracts a severe degree of disapproval.
135. Item 10:
"Despite being suspended from practicing medicine on 18
December 2000, Peter Gilfedder's letter on 2/2/2001
indicates further problems with Dr Stoermer still
prescribing addictive drugs in defiance of his
suspension."
135. The complaint refers to a number of prescriptions in that
category which, it was alleged, were prescribed by the
respondent after he was suspended from practicing medicine.
136. After examination of some of those scripts by a
handwriting expert, counsel for the complainant concedes that,
And in respect of another, that it can be sustained, and, only in
in respect of one patient, that particular cannot be sustained.
patient in respect of whom he wrote such a prescription.
175. Again, whatever the stress or pressing circumstances
which arose at that time, the fact that his authority had
been withdrawn was clearly known to him and his decision to
flout the withdrawal of his authority was clearly a
deliberate one; and in the context of his overall conduct is
one which would be regarded with some degree of seriousness.
He did not specifically deal with patient "C" in his
statement of March 2003.
176. So far as patient "C" is concerned, again, the tribunal
is comfortably satisfied, that the particulars in paragraph 3
have been made out in each instance, and is comfortably
satisfied, for the reasons given earlier, that the conduct
constitutes at least unsatisfactory professional conduct.
177. Patient "D" involves 78 prescription between December
1999 and August 2000. Again there was no authority held in
respect of this patient, and Dr Stoermer had not held any
such authorities since his earlier authorities had been
revoked in March 1998.
178. The records indicated addiction and drug-seeking
behaviour on the part of patient "D", and it is clear that
the respondent was well aware that he was treating an
addicted patient. Again, there are a substantial number of
Pethidine scripts which are not recorded in such of the
medical records as could be obtained. But this is not one of
those cases where the records indicate a refusal of Pethidine
but a script was actually written. When interviewed, the
respondent claimed that a number of prescriptions,
for 15 ampoules each, were forgeries. He told
the authorities that he had first seen the patient in
Queensland and then by coincidence he subsequently appeared
at the practice at Kingsgrove where the respondent was
working, asking for more Pethidine. His defence of his
failure to obtain an authority to prescribe to this patient
was that he, Dr Stoermer, was fatigued following a bout of
pneumonia.
179. He also conceded that the pharmacist had told him of
four forged prescriptions in relation to this patient, but
the respondent did not report this to the Pharmaceutical
Services Branch. He also alleged that some of the
prescriptions were written under duress.
180. Again, in relation to this patient, he held no authority
to prescribe to this particular patient and his conduct in
relation to this patient is largely of a piece with the
conduct revealed in relation to others in the complaint.
181. He offers, in his defence in a statement of March 2003,
the proposition that he contacted Dr Gorman, who had
previously held an authority up to 5 November 1999 in respect
of this patient, and that Dr Gorman had simply told him “to do
what you can”. That may be the case. But even if it is, it
provides no answer to the complaint in respect of patient
"D".
182. What the respondent did was to inappropriately prescribe
Pethidine to a person known by him to be addicted and to fail
to make appropriate records when he did so. Again, in
relation to this patient, the tribunal sees no rational
alternative open to it other than to accept the submission
that the complaint has been made out in relation to patient
"D". The tribunal is comfortably satisfied that the
particulars in paragraph 4 have been made out, and that the
conduct, for the reasons given earlier, constitutes at least
unsatisfactory professional conduct.
183. Patient "E" was the subject of 25 prescriptions between
the end of May 2000 and 11 December 2000. An authority was
held by another doctor in respect of this patient. She was
clearly known to Dr Stoermer as being a patient who was drug
addicted or dependent. There are slightly less than half of
the prescriptions not recorded in her medical record. The
majority, bar two or three, were, however, recorded.
184. In her case, on three occasions, he claimed to have
refused Pethidine in the entry in the medical notes whereas,
in fact, prescriptions for Pethidine were written on those
occasions, including on 20 and 26 October 2000, after he had
requested the withdrawal of his general authority to
prescribe drugs of addiction.
185. In relation to this patient, also, he rather curiously
was involved in an incident recorded in the handwriting of
the pharmacist on 14 December 2000. On 11 December 2000,
patient "E" presented a script to the Bonnyrigg Plaza
Pharmacy. The pharmacist realised that it was from the
respondent and he was aware that the respondent had had his
authority to prescribe drugs of addiction withdrawn. The
pharmacist prudently double-checked with the Pharmaceutical
Services Branch and also informed them of what had happened. He
told the patient that the pharmacy would not be able to
dispense the script and that they would have to retain the
prescription.
186. Soon after, he reports that the doctor rang him to find
out what the problem was. It almost beggars belief that it
was necessary for the respondent to have made such an inquiry.
Almost two months after he had asked for the revocation of
his authority, he was still writing a prescription for a drug
of addiction, and the problem must have been obvious to him.
In any event, he was informed by the pharmacist that his drug
of addiction authority was not valid and the pharmacy could
not dispense the Pethidine script. He was recorded by the
pharmacist as saying, "Oh yes, that is right. I have been
away and have forgotten." And he then asked the pharmacist
to forget about the script and to throw it out. That
behaviour is curious to say the least. But there is no doubt
that there was such a prescription.
187. Again, as the section 66 inquiry had already noted, he
advised that he had written a prescription after his
authority had been relinquished but relied on the mitigating
factors of stress which he experienced due to his cousin's
illness. It is, in the view of the tribunal, inconceivable
that he had, and as he put it to the pharmacist, “forgotten”
that his authority had been withdrawn. The circumstances of its
withdrawal, including the lengthy interview with the officers
of the Pharmaceutical Services Board and the number of cases
about which he was questioned concerning the prescription of
drugs of addiction, makes it simply unbelievable that he had
forgotten by 14 December 2000, or 11 December 2000, that his
authority had been withdrawn. Clearly, the only rational
conclusion open to the tribunal is that it was a deliberate
decision on his part to write a prescription, and, when the
pharmacist was alert to his lack of authority, to try and
bluff his way out of it by claiming, no doubt falsely, that
he had forgotten the withdrawal or revocation of his
authority.
188. He makes no specific reference in his statement of 21
March to patient "E". The explanations offered for his
conduct in relation to patient "E" provide no plausible
excuse for what he did. He was not interviewed by the
Pharmaceutical Services Board on 18 October 2000 specifically
in relation to this patient, but that makes no difference to
the conclusion reached overall. Again, the tribunal is
comfortably satisfied that the particulars in paragraph 5 are
each made out, and is comfortably satisfied that that
conduct, for the reasons given earlier, amounts to at least
unsatisfactory professional conduct.
189. Patient "F" was the subject of 73 prescriptions between
December 1999 and November 2000. This patient was one of
those specifically the subject of counselling in October 1997,
and when the respondent was informed of her habit of doctor
shopping and that she had been charged with drug offences. He
had applied for an authority at one stage in 1997 for this
patient but it had been refused. After his signed request
for the withdrawal of his drug of addiction authority and the
advice that he should immediately cease to prescribe such
drugs, he agrees that he prescribed drugs to this patient and
others on the same night.
190. He agreed that he had been informed in October 1997 that
she was in the habit of doctor shopping and had been charged
with drug offences. Leaving aside what he knew from the 1997
interview, it is clear from her medical records that, in both 1997
Again, this was an instance of a patient where there are manyand in 2000, he was aware of her dependency on Pethidine.
Pethidine prescriptions which were not recorded in her
medical record, indeed outnumbering those which were so recorded.
191. On occasions between 22 July and 29 September 2000, her
entries in the records indicate that Pethidine was either
denied or refused when, in fact, prescriptions were written
for her. A number of notes in the medical records indicate
that this was a patient in respect of whom there should be
particular caution, dating back to 1995. The absence of any
records in relation to this patient between January 1998 and
January 2000, is, so far as the respondent is concerned, not
a matter of great moment in that it does not appear that he
was involved in her treatment in any substantial way, if at
all, within those periods.
192. When interviewed in October 2000, he claimed that he was
prescribing Pethidine for migraine, that she had been on
Pethidine for 20 years and he hoped that one day she would
simply stop. He was asked about writing two prescriptions on
the one day, which the records indicate seemed to have
occurred on about five occasions between 1 August and
26 September. His only explanation was that he possibly put
the wrong date on the script. That explanation is one which
the tribunal would reject as highly implausible.
193. He said, in the course of the section 66 inquiry, that
he tried to refer her to a pain clinic, to counselling and to
detoxification, though without success. He agreed that he
was aware that her name was on a list of doctor-shoppers, and
that he had been warned about her.
194. In his response in March last year, he suggested that he
had not prescribed for her after what he described as the
withdrawal of his authority, after his “authority was revoked
on 18 December 2000”. That assertion appears to confuse two
issues: the revocation or withdrawal of his authority to
prescribe in October 2000 and his suspension after the section 66
inquiry on 18 December 2000.
195. The allegation before the tribunal which is of
particular moment here is the allegation that he
had prescribed after he was suspended on 18 December 2000.
In that regard, the tribunal was provided with a report from
an expert in handwriting analysis, Mr Paul Westwood.
196. The case for the complainant is that there were two
prescriptions in the name of "F", purportedly issued on
11 and 26 September 2000 respectively, but, in fact,
presented and dispensed on 24 and 26 January 2001.
Essentially, the complainant's case was that the
prescriptions carried an illogical sequence of form numbers
and dates of issue, and that nearly all of the previous
Pethidine prescriptions for "F "had been collected and
dispensed within a few days of issue, the majority being
dispensed on the day of issue.
197. It is put as being highly unlikely that "F" would have
kept prescriptions unfilled for four months, a conclusion
which the tribunal itself would readily draw, having regard
to the pattern of her having prescriptions dispensed promptly,
to the clear evidence of drug dependency on her part and, thus, the
unlikelihood that she would keep prescriptions in the drawer,
as it were, until some four months or so later.
198. Whilst the circumstantial case in favour of a finding
that the respondent wrote those prescriptions after he had
been suspended was a relatively strong one, the handwriting
evidence significantly undermines the strength of that
circumstantial case. The complainant accepts that the effect
of the expert report is that the complainant could not make out the
allegation in paragraph 6(a) of the complaint.
199. Mr Westwood's qualifications and experience are set out
in some detail in the curriculum vitae accompanying his
report, and the tribunal accepts that he is a well-qualified
expert in this field of handwriting analysis. He has some
reservations about signatures on prescriptions relating to
patient "F" for 26 October, and for the two which are alleged
to have been issued post-suspension of the respondent in
December 2000. He also has some reservations in relation to
three out of the seven prescriptions relating to patient "G".
200. Other than for those identified prescriptions, he
concluded that the question signatures were probably written
by the writer of the specimen signatures and the evidence
indicates that the writer of the specimen signatures was
clearly the respondent.
201. He also concluded that, with those exceptions, the
substantive handwritten entries on each of the questioned
documents was written by the writer of the specimen writings.
However, six signatures, three of which related to
signatures in the name of patient "F" and three in the name
of patient "G", were described by him in this way:
"They exhibit an initial complex formation which would
not be fully accounted for amongst the available
specimen signatures. I concluded with respect to these
signatures that they may well have been written by the
writer of the specimen signatures. Access to a larger
sample of specimen signatures may allow for the
expression of a more certain finding with respect to
these signatures."
202. The uncertainty engendered by that expression of opinion is,
in the view of the tribunal, sufficient to undermine the
complainant's case that the two prescriptions were written
after 18 December 2000. The complainant, in the end, did not
seek to press paragraph (a) in the light of that fingerprint
evidence.
203. The assertion made in the statement of 21 March, is to
the extent that it relates to patient "F", one which the
tribunal is able to acknowledge as of some merit, in view of
the findings of the handwriting expert. The suggestion
further made to the effect that this patient may have hoarded
prescriptions is one which would seem highly unlikely, but, in
view of the handwriting expert's evidence, it is
unnecessary to take that assertion any further.
204. He also, rather curiously, alleges that the “paperwork” of
1 August 2000 and the prescription is forged. That was not
a matter identified in a letter sent to the complainant by
the respondent's solicitor in March 2003. It seems
inherently unlikely that both the two prescriptions for
patient "F" of 1 August 2000, and the progress notes
themselves were somehow forged.
205. The statement of the respondent does not indicate how it
might be that the patient might have had some opportunity to
interfere with the contents of the progress notes. The
respondent does not appear to have raised that issue on any
earlier occasion, including at the section 66 inquiry. Given
the inherent unlikelihood that both sets of documents were
forged, the tribunal, in the absence of any further
supporting material from the respondent, can only reject that
assertion by him. Even if it were true, then it would seem
to make no material difference, overall, to the picture which
the bulk of the material demonstrates, in any event.
206. So far as paragraph 6 is concerned, then, as already
indicated, the tribunal is not satisfied that paragraph 6(a)
has been made out but is comfortably satisfied that
paragraphs 6(b) to (f) inclusive are made out and is
comfortably satisfied, in respect of those subparagraphs, that
the conduct thereby revealed is unsatisfactory professional
conduct.
207. The tribunal need, in the circumstances, express no view
as to whether the conduct here might be more seriously
categorised, but does record its opinion that it is
comfortably satisfied that the conduct in relation to
patient "F" would properly be regarded as attracting severe
disapproval and would, in the circumstances, itself, amount to
professional misconduct.
208. Patient "G" involved 87 prescriptions between November
1999 and 15 December 2000. The respondent did apply for an
authority to prescribe in relation to this patient in July
2000, but that application was refused. Again, on the
evening on which he had signed a request for withdrawal of
his drug of addiction authority, and when he had been advised
to immediately cease prescribing drugs of addiction, he went
ahead and prescribed drugs to this patient as well as to
others. There is no doubt that he was well aware of her
addiction and drug-seeking behaviour. Again, in relation to
her case, there are numerous entries referable to the
respondent's knowledge of her drug dependency and addiction.
209. There are a significant number of occasions between
January and August when the records indicate that Pethidine
was refused, or there was to be “no more Pethidine”, where
prescriptions were actually issued. Indeed, on 28 January 2000,
two prescriptions bearing that date came into existence. A
number of Pethidine scripts were not recorded in the medical
record. Some were, but many were not. This patient was also
known to the authorities as having a long history of
doctor-shopping.
210. There are a number of discrepancies or points which are
referred to in the second folder at tab 7 in the summary of
the case relating to patient "G". In respect of this
patient, he said he prescribed her Pethidine for back pain,
neck pain and migraines. He acknowledged in the interview
that he had received a letter refusing him authority to
prescribe to her, but claimed that he then “forgot” about it
and continued prescribing. Again, that is clearly an
implausible and unacceptable explanation without further
support, of which there is none.
211. Again, in relation to this patient, her Pethidine was to
be self-injected. He denied that he had back-dated some
prescriptions. It is unnecessary to deal in any further
great detail with her case. Again, it falls into a similar
pattern to those of the earlier patients in many respects.
212. In relation to this patient also, it was alleged that
the respondent had continued to prescribe for her after the
suspension on 18 December 2000. Leaving aside prescriptions
alleged to have been issued on 10, 14 and 19 September 2000,
there were three prescriptions which the complainant urged
the tribunal to accept were the respondent's prescriptions
and had, in truth, been issued after he had been suspended,
they being prescriptions purportedly dated 1 and 11 September,
and 7 October 2000. Those prescriptions bearing dates 10, 14
and 19 September were in the category which contain
signatures which Mr Westwood considered “may well have been”
written by the writer of the specimen signatures, but he was
unable to go further and say that the signatures were
probably written by the writing of those specimen signatures.
213. In respect of those latter prescriptions, despite the
relatively persuasive circumstantial case which might
otherwise be made for their authenticity, the complainant
accepted that the tribunal could not be comfortably satisfied,
in the light of that handwriting evidence, that those three
prescriptions were issued by the respondent. Those which the
complainant pressed as being genuine were purportedly
presented and dispensed on 26 December 2000 and 17 and 26
January 2001.
214. The case in favour of their being genuine is based on a
number of circumstances; that is the prescriptions carry what
are said to be an illogical sequence of form numbers and date
of issue, prescriptions are written on three pads not
previously used by the respondent at the practice at Austral
in September 2000 and at Bonnyrigg in October 2000. One
prescription is dated at the Austral Medical Centre on Sunday
10 September, a day on which that centre does not open.
Prescriptions were purportedly issued at Bonnyrigg on 19
September and 7 October when the respondent had previously
advised the Pharmaceutical Services Branch that he first
worked at Bonnyrigg on 15 October 2000, and, finally, on the
basis of the unlikelihood that this patient would have kept
prescriptions unfilled for a period as long as four months.
215. In respect of the three remaining prescription, that is
a highly persuasive, albeit circumstantial case. The
respondent's attitude to that material appears in the earlier
part of his statement of 21 March 2003. Again, he denies
that he prescribed any drugs of addiction after 18 December
2000, though he confuses the revocation of his authority to
prescribe drugs in October with his suspension in December.
He alleges, in response to the observation that the
prescription carried a sequence of form numbers and dates,
that he suspected that the prescriptions were forged.
His suspicions in relation to some of the prescriptions may
be correct, though it should be noted that Mr Westwood does
not positively assert that they were written by some person
other than the respondent. His explanation for the use of
different prescription pads not previously used at the two
practices in the earlier months is that, when working at those
centres, numerous different script pads were available. It
seems somewhat coincidental, however, that only one
prescription was written apparently by the doctor on each of
those two pads at those practices.
216. A further response is that he may have made a mistake when
dating the prescription on a Sunday when the Austral Medical
Centre was closed on Sundays. Those assertions do not
undermine the strength of the circumstantial case upon which
the complainant seeks to rely. It is, in the view of the
tribunal, the only rational explanation, having regard to all
of the relevant circumstances, that is that the three
prescriptions were issued by the respondent and issued after
he had been suspended.
217. In reaching that conclusion, the tribunal is conscious,
in view of what was said earlier about writing prescriptions
after the suspension, that such a finding, albeit in relation
to three prescriptions only is a serious matter and has
potentially significant consequences for the respondent. The
evidence, in the end, really only points in one direction and
conclusively so; that is, that the three prescriptions were
issued by the respondent after he had been suspended from
medical practice. Accordingly, the tribunal is comfortably
satisfied that the complaint in relation to patient "G" in
paragraph 7 is made out in all respects, except that, in
relation to subparagraph (a), the tribunal is so satisfied
only in relation to the prescriptions purporting to have been
issued on 7 October 2000, 1 September 2000, and 11 September
2000.
218. The tribunal is comfortably satisfied also that the
conduct amounts to unsatisfactory professional conduct and,
for reasons referred to earlier, considers that the whole of
the conduct in paragraph 7 would be regarded sufficiently
seriously as to constitute professional misconduct on the
part of the respondent.
219. There were 43 prescriptions between December 1999 and October
2000. Originally, the respondent had held an authority under
section 28(a) for this patient until March 1998,
authorising the prescription of 20 Endone per week and five
Pethidine ampoules per fortnight, maximum, if needed, and the
condition for which he held authority was for the treatment
of back pain.
220. In October 1997, the practitioner had been generally
counselled about exceeding authorised quantities of Pethidine
and he had not held any authorities under section 28 since
March 1998. There are multiple references in her record
indicating his knowledge of her addiction to Pethidine.
Again, there are a substantial number of Pethidine scripts
not recorded in her medical record and occasions, four in
all, between April and June, when the entry indicates that
she was refused Pethidine but when in fact Pethidine was
prescribed.
221. In respect of this patient there was no evidence
available to the Pharmaceutical Services Branch that she was
a person who could be described as a doctor-shopper, and no
doctor had held an authority in relation to her since
1 October 1998. There is an entry in November 1999 in her
medical records indicating "must have authority as per health
department". Other points to note in the record are detailed
in the outline of the evidence in tab 8 in the second volume.
222. He told the Pharmaceutical Services Branch that he had
prescribed for her for the treatment of spinal pain and a
broken knee. He agreed that he seemed to be “like a magnet” to
people seeking Pethidine, but indicated that he did not think
that this patient was drug dependent. He claimed not to
remember the previous counselling in 1997 when discussing this
patient.
223. When he was asked about this patient at the section 66
inquiry, at page 8 of the report of the inquiry, it is
recorded that he was asked by members of the inquiry why he
would refuse Pethidine to a particular patient during a
consultation at the surgery, and then, as he had suggested
as a general explanation earlier, prescribed Pethidine on the
same day at a later stage during a home consultation. He
suggested that the patient had probably suffered some trauma,
assault, or had no place to say or nothing to eat or
suffering from severe back problems or depression. When
questioned by the Chair of the inquiry as to whether those
particular circumstances had changed from the time of their
initial consultation at the surgery to the home visit, the
respondent was unable to provide an answer.
224. The explanations offered for that phenomenon obviously
struck the inquiry as being unlikely, and it is certainly one
which this tribunal considers totally unconvincing as an
explanation. The evidence clearly points to a pattern of
conduct on the part of the respondent of making false or
incomplete entries in the record, suggesting a failing to
record a prescription of Pethidine when he, in fact, wrote a
prescription during that consultation.
225. No specific reference is made to the circumstances of
this patient in his statement of 21 March 2003. Again, this
patient's treatment falls into a familiar pattern in relation
to the conduct of this practitioner. The tribunal is
comfortably satisfied that the particulars in paragraph 8
have been made out in all respects, and that his conduct in
relation to this patient would properly be assessed as
amounting to unsatisfactory professional conduct, at least.
226. A finding that a medical practitioner's conduct, already
found to be unsatisfactory professional conduct, is
sufficiently serious to justify the extreme disciplinary
measures of suspension or deregistration, and thus amounting
to professional misconduct, is not a finding which may be
made lightly. However, the tribunal is comfortably satisfied
that the conduct of the respondent here, not only in the
particular respects in which it has already concluded the
conduct amounted to professional misconduct, but generally, in
relation to the complaint as a whole, requires the tribunal
to conclude, as it does, that it is comfortably satisfied
that the respondent has been guilty of professional
misconduct.
227. Whilst all of the particulars relate to one area of
practice, the common thread in the behaviour of the
practitioner, as demonstrated in this inquiry, is a
fundamental refusal to accept that he is bound by the same
laws and restrictions as govern all other medical
practitioners, and by ethical rules and obligations which all
reputable practitioners would recognise as binding upon them,
particularly in relation to the treatment of addicted
patients. The holding of such an attitude on the part of the
practitioner is inconsistent with the retention of the
privileges which attach to registration as a medical
practitioner.
228. The conduct of the practitioner here reflects a grave
lack of adequate judgment and care in the practice of
medicine and a grave level of improper and unethical conduct
relating to the practice of medicine. He acted repeatedly,
in respect of eight different patients and over a
relatively lengthy period of time, in a manner which
inevitably involved repeated and, the tribunal is satisfied,
deliberate, defiance of legal restrictions and ethical
standards of practice.
229. The conduct established here demonstrates a deliberate
departure from accepted standards, or an indifference to
the requirements applying to a registered medical
practitioner when dealing with addicted patients, and, thus,
an abuse of the privileges which accompany registration as a
medical practitioner. They are serious instances of
professional misconduct. They call for a strong response from
this tribunal in the proper exercise of its protective
jurisdiction.
THE APPROPRIATE ORDER
230. Could this tribunal, on behalf of he the community,
entertain any confidence that the respondent would practice
medicine in the future within the constraints of the law and
in accordance with his ethical obligations as a medical
practitioner? There is little in the way of material before
the tribunal which would assist in resolving that issue in
favour of the respondent. The material before the tribunal
could not be said to constitute an acceptance of the allegations made
against him, nor an acceptance of the quality of that conduct
as amounting to unsatisfactory professional conduct, let
alone professional misconduct. Though he has not actively
participated in the hearing of this inquiry, the extent of
his participation was largely to defend himself against
specific allegations in respect of some of the patients. He
generally offered the explanation that he considered that he
was doing the right thing in relation to patients, and/or
that he felt under pressure or duress from patients who, he
understood, could be quite violent towards him if he did not
co-operate with him. 231. It cannot be said that this was conduct
arising out of inexperience or naivety on the part of his
practitioner. He was an experienced practitioner with
experience in a number of geographical areas over a period of
almost 35 years by the time these events occurred.
He had had the experience of his conduct being called into
question in the state of Nevada with the resulting reprimand and the
imposition of conditions on his registration. He had had the
Services Branch officers in October 1997.clear warning and advice occasioned by the visit of the Pharmaceutical
232. In relation to the present matters, he disregarded the
advice of the officers in relation to his continuing to
prescribe drugs of addiction to patients for whom no
authority was held after he had himself requested that his
general authority be revoked. He also, as the tribunal has
found, deliberately flouted his suspension from the practice
of medicine to issue three prescriptions to patient "G".
233. There is no evidence of any acknowledgment of wrongdoing
on his part or of any insight into the conduct which led him to
have his registration considered by this tribunal. There is
no evidence before the tribunal as to whether he is a person
who, in the public interest, might have some claim to continue
practice in this state or some other part of the world. The
evidence is inconclusive as to whether he remains in practice,
in any event.
234. In those circumstances, it is difficult to treat his
continued period of suspension from 18 December 2000 to date
as itself imposing some sanction which might replace or
modify the need for further drastic action on the part of
this tribunal. That consideration is fortified by the
circumstances in which he has apparently sought to renew his
registration in the United States without making disclosure
to those authorities of his suspension in this state. 235. Whilst
the tribunal is reluctant to terminate the professional
career of a senior and experienced practitioner, there is, in
the view of this tribunal, no other appropriate order than an order
for deregistration of this practitioner. Such an order is called
for by the serious nature of the complaint which has been
made out against him, and by the need to protect the public
by removing this practitioner from the register. He has,
through the conduct revealed by this complaint, demonstrated
that he is unfit to practice medicine in this state. The
tribunal accepts the submission made on behalf of the
complainant that the conduct is conduct which can be
described as of grave seriousness. The only proper order
that can be made in those circumstances is an order for
deregistration.
236. The tribunal has the power to restrict the time before
which any application for review might be made. The
complainant submits that it would not be appropriate, in this
case, to fix any time period. The circumstances of this case
suggest that that might be a prudent course.
237. The complainant has been unable, for medical reasons, to
come to Australia to take an active part in the proceedings,
and, although he would need to show fresh evidence not
otherwise available, there remains some possibility, perhaps
in distinct and remote, but a possibility nonetheless, that
there may be other material that the respondent could have
put before the tribunal.
238. In any event, given the uncertainty as to what he has
been doing in terms of the practice of medicine since
December 2000, it would be difficult to formulate an
appropriate period before which the respondent could not
apply for a review of the orders to be made today. In those
circumstances, the tribunal does not propose to make any
order under section 64(3) of the Medical Practice Act 1992.
COSTS
239. The complainant seeks an order for costs, including
the costs occasioned by or reserved on, earlier applications for
adjournment. An order that the respondent pay the costs of
the complainant should be made in accordance with the general
compensatory principles laid down in Ohn v Walton , (Court of
Appeal, 28 February 1995, unreported) and pursuant to clause 13
of schedule 2 of the Act.
240. By section 155 of the Act an order of the tribunal takes
effect on the day on which it is made, or on such later day
as is specified in the order. No submission has been put
before the tribunal suggesting that there should be any delay
before the proposed order takes effect. In the absence of any
cogent reason for departing from the general tenor of section
155, the tribunal sees no reason to postpone the operation of
this order. This is not one of those cases where the
respondent practitioner remains in practice in this State at
the time of the decision of the tribunal. The respondent's capacity to
practice medicine in New South Wales has, in any event, been
suspended continuously since 18 December 2000.
241. Accordingly, the order will take effect today, when it
is made.
ORDERS
242. The tribunal unanimously makes the following orders:
1. Dietrich Albert Stoermer is deregistered and his
name is to be removed from the Register of Medical
Practitioners of New South Wales;
2. The respondent is to pay the costs of the Health
Care Complaints Commission, such costs to include costs
reserved on earlier adjournment applications;
3. Pursuant to schedule 2 clause 6 of the Medical
Practice Act 1992, no publication is to be made of the names
of the patients, nor of any material capable of identifying
them;
4. A sealed copy of these orders and, when available,
of the tribunal's reasons for determination and orders are to
be served by post on the respondent: (a), care of Sharah
Associates, solicitors, 178 Parramatta Road, Stanmore, New
South Wales, 2048; and, (b), 4141 Springhill Avenue,
Las Vegas, Nevada, 89121, USA.
FOR AND ON BEHALF OF THE MEMBERS OF THE TRIBUNAL
----------------------------
JUDGE G J GRAHAM
DEPUTY CHAIRPERSON
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