In Re Dr Peter William STEWART
[2005] NSWMT 15
•25 November 2005
New South Wales
Medical Tribunal
CITATION: In Re Dr Peter William STEWART [2005] NSWMT 15 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission (Applicant)
Dr Peter William STEWART (Respondent)FILE NUMBER(S): 40028 of 2004 CORAM: Walmsley, SC DCJ - Child, Dr D - Gordon, Dr P - Kusuma, Ms R CATCHWORDS: Professional Misconduct - Unsatisfactory Professional Conduct - Inappropriately prescribing anabolic steroids LEGISLATION CITED: Ss. 36, 37 and 51(1) Medical Practice Act 1992 (NSW)
Cl 36 Poisons & Therapeutic Goods Regulation 1994
Medical Practice Regulation 1999CASES CITED: HCCC v Abou Hatoum [2004] NSWCA 30;
HCCC v Litchfield (1997) 41 NSWLR 630;
In re Dr Graiche (MT 15 April 1998);
Pillai v Messiter No. 2 (1989) 16 NSWLR 197;
Prothonotary v Del Castillo [2001] NSWCA 75DATES OF HEARING: 24 November 2005
25 November 2005DATE OF JUDGMENT: 25 November 2005 LEGAL REPRESENTATIVES: Ms K. Eastman (Applicant)
Ms A. Katzmann S.C. (Respondent)ORDERS: 1.The Tribunal finds proved all particulars save for 3 in the amended complaint 2.The Tribunal is satisfied Dr Stewart is guilty of professional misconduct 3.Dr Stewart is reprimanded 4.Dr Stewart is fined $10,000. That sum is to be paid to the Medical Board of NSW by 24/1/06 5.The Tribunal directs that if Dr Stewart practices after 24/1/06 his registration be subject to the following conditions: (a)work only when there is another medical practitioner on site (b)not undertake any solo general practice work; (c)not prescribe, possess or administer any (i)anabolic steroid (ii)androgenic steroid 6.Dr Stewart is to pay the HCCC’s costs 7.The Tribunal directs that the Medical Board has the power to vary any of the conditions in order 5
JUDGMENT:
DEPUTY CHAIRPERSON:
1 For reasons which I am about to deliver, the Tribunal does find proved all the particulars save for three. For reasons which I am about to deliver, the Tribunal is satisfied that Dr Stewart is guilty of professional misconduct and we consider he ought be reprimanded, fined $10,000 and pay the costs of the Commission. Should he practise after 24 January next year, his registration should be subject to the conditions which I raised with counsel this morning.
2 Having announced what orders and findings we propose to make, I will now give reasons.
3 This application concerns a complaint by the Health Care Complaints Commission, (“the Commission”,) that Dr Stewart is guilty of unsatisfactory professional conduct and/or professional misconduct: see ss 36 and 37 of the Medical Practice Act, (“the Act”).
4 The particulars assert:
1) Between December 1998 to November 2000 he prescribed anabolic/androgenic steroids to patients listed in schedules A to W, that the quantities prescribed were excessive or not for purposes in accordance with recognised therapeutic standards, contrary to clause 36 of the Poisons & Therapeutic Goods Regulation 1994, and without exercising responsible medical judgment;
2) it is said that for the patients who were listed there he failed to arrange for them to undergo proper tests to monitor testosterone levels and/or liver function prior to or after starting treatment;
3) that he prescribed Temazepam for a period in excess of the recognised therapeutic standards and without exercising medical judgment;
4) that between July 1999 and November 2001 he prescribed Phentermine or Duromine to patients A, G and T in inappropriate quantities and without exercising medical judgement;
5) that he prescribed Cytadren without proper or clinical indications contrary to or not in accordance with recognised standards and without exercising responsible medial judgement;
6) that he prescribed tamoxifen, a drug for the treatment of breast cancer, thyroxine (also known as Oroxine) and methoxsalen, a drug for the treatment of vitiligo, to patient T without proper and sufficient clinical indications and purposes, not in accordance with recognised standards and without exercising responsible medical judgment;
8) that he failed to keep proper records for patients A to W in accordance with the requirements of the relevant regulations.7) that he prescribed Insulin without proper indications; and
5 The complaint was amended at the commencement of the hearing so that the orders sought accorded with a recent amendment to s 36 and leave was given to that effect. However, before the Tribunal delivered its reasons today, counsel for the Commission pointed out that in 2004, that is, before the relevant legislative changes, there was already a complaint referred to the Tribunal. Thus the amendments, it appears, do not apply. Accordingly, the Commission was given leave again to amend the complaint so that i) now reads “has demonstrated a lack of adequate knowledge, judgment or care in the practice of medicine and/or” instead of the words which appear in the amended complaint. The complaint then in the form in which we considered it is set out below :
that Dr Peter William Stewart of 57 Conway Street Lismore NSW 2480 (“the practitioner”), being a medical practitioner registered under the Act has been guilty of unsatisfactory professional misconduct and/or professional misconduct within the meaning of sections ss. 36 and 37 of the Act in that he:
(i) has demonstrated a lack of adequate knowledge, judgment or care in the practice of medicine and/or
(ii) engaged in improper and unethical conduct relating to the practice of medicine.
PARTICULARS
(1) Between December 1998 and November 2000 the practitioner prescribed anabolic/androgenic steroids namely nandrolene decanoate (Deca Durabolin), methenolone acetate (Primobolan), mesterolone (Proviron), testosterone (Andriol, Sustanon and Primoteston) fluoxymesterone (Halotestin) and human chorionic gonadotrophin (Profisi) to the patients and on the dates listed in schedules A to W :
(a) in quantities and for a purpose or purposes not in accordance with recognised therapeutic standards of what is appropriate in the circumstances, contrary to clause 36 of the Poisons & Therapeutic Goods Regulation 1994,
(b) without exercising responsible medical judgment.
(2) The practitioner failed to arrange for Patients A, B, E, F, G, J, K, M, R, S, T, U, V & W to undergo appropriate tests to ascertain and monitor their testosterone levels and/or liver function, prior to and/or after the commencement of treatment with anabolic/androgenic steroids.
(3) Between November 1997 and February 2001 the practitioner prescribed Temazepam (Euhypnos) to the Patient H:
(a) for a period in excess of recognised therapeutic standards of what is appropriate and/or likely to create dependence on the medication;
(b) without exercising responsible medical judgment.
(4) Between July 1999 and November 2001 the practitioner prescribed Phentermine (Duromine) to the Patients A, J and T :
(a) in quantities and/or for a purpose or purposes not in accordance with recognised therapeutic standards of what is appropriate in the circumstances, contrary to clause 36 of the Poisons & Therapeutic Goods Regulation 1994,
(b) without exercising responsible medical judgment.
(5) On 29 December 1999 the practitioner prescribed Cytadren a drug for the treatment of breast cancer and Cushings syndrome to Patient K :
(a) without proper and sufficient clinical indications to do so,
(b) for a purpose or purposes not in accordance with recognised therapeutic standards of what is appropriate in the circumstances, contrary to clause 36 of the Poisons & Therapeutic Goods Regulation 1994,
(c) without exercising responsible medical judgment.
(6) Between the practitioner prescribed tamoxifen (Genox) a drug for the treatment of breast cancer, thyroxine (Oroxine) and methoxsalen (Oxsororalen), a drug for the treatment of vitiligo to patient T :
(a) without proper and sufficient clinical indications to do so,
(b) for a purpose or purposes not in accordance with recognised therapeutic standards of what is appropriate in the circumstances, contrary to clause 36 of the Poisons & Therapeutic Goods Regulation 1994,
(c) without exercising responsible medical judgment.
(7) On 4 March 1999 the practitioner prescribed Insulin, a drug for the treatment of diabetes, to Patient G:
(a) without proper and sufficient clinical indications to do so,
(b) for a purpose or purposes not in accordance with recognised therapeutic standards of what is appropriate in the circumstances, contrary to clause 36 of the Poisons & Therapeutic Goods Regulation 1994,
(c) without exercising responsible medical judgment.
(8) The practitioner failed to make proper records of his treatment of patients A to W in accordance with the requirements of the Medical Practice Regulation 2003 and which included :
(a) information relevant to his diagnosis and treatment of the patients,
(b) the patients’ medical history
(d) advice given to the patients.(c) plan of treatment for the patients
5. The complaint followed a complaint from Mr Battye, principal pharmaceutical adviser of the Pharmaceutical Services branch of the New South Wales Health Department, made on 16 July 2001. There has, as is obvious, been some considerable delay since then in the commencement of these proceedings. That the doctor was prescribing anabolic/androgenic steroids significantly in excess of practices of his peers was apparently discovered on a survey of the Northern Rivers pharmacies.
6 On 14 march 2001 Dr Stewart was interviewed by Mr Thomson of the Pharmaceutical Services Branch and much of the material on which the complaint was based is found in that interview, a transcript of which is to be found in exhibit A.
7 The HCCC referred the factual material to a peer reviewer, namely Dr I Chung. He responded on 26 August 2003 and his response was in evidence.
8 Altogether the complaint concerns complaints about the treatment of twenty-three patients, of whom two are women and twenty-one are men.
9 When the Commission retained Dr Chung with a request for his peer review, he was asked to assume a number of instances of alleged wrongdoing which did not ultimately form the basis for the complaint which this Tribunal heard. For that reason, Ms Katzmann SC who appeared for Dr Stewart objected to the Tribunal’s receiving Dr Chung’s two reports. The first is the lengthy one. The second is in effect a response to some matters which were put in his own defence by Dr Stewart.
10 Ms Katzmann was critical of Dr Chung’s first report, or at least certain matters that underlay it. For example the wrongful use of steroids was said to have occurred in the complaint between December 1998 and November 2000, whereas Dr Chung was given records showing the prescribing of steroids over a longer period - see for example Patient D where the period was said to be 4 March ’97 to 20 January 2000; Patient F, 3 September 1998 to 20 October 2000; Patient H, 5 October 1995 to 22 May 2000. In the case of Patient I, Dr Chung used the expression “numerous occasions” and this apparently is said to have occurred over a period of four and a half years, whereas in fact there were only about four episodes over a period of twenty months. In Item 5 in relation to that patient there was reference to an authority to prescribe a drug called Roaccutane, contrary to the regulations, which was not the subject of the complaint. In relation to Patient P, it was said he prescribed a drug called Nalvodex on multiple occasions absent correct indications, whereas this was not in the complaint. The same is said in relation to T, improperly prescribing Trisoralen when this was not in the complaint; Patient U, prescribing Normasin absent medical indications, not in the complaint; and W, prescribing a number of drugs absent proper medications whereas the complaints as to this patient were not having blood tests done and poor record-keeping. However, the Tribunal, having heard Ms Katzmann’s submissions, decided that, since there was still a substantial basis put forward in particularisation of the complaint and which Dr Stewart conceded, there was sufficient factual material underlying his criticisms and his views so as to retain for his report a great deal of weight. The view the Tribunal took was that ultimately both reports should be admitted but that by reason of the matters to which Ms Katzmann took us we should exercise caution in the weight which we accorded his views.
11 The particulars for each patient in the complaint is a summary of Dr Chung’s relevant criticisms.
12 Dr Chung concluded his report with what he described as a general discussion of Dr Stewart’s clinical conduct about his medical records and prescribing practices. He noted that Dr Stewart had admitted to prescribing large quantities of certain anabolic and androgenic steroids and concluded that he did this in the knowledge that some of his patients were bodybuilders and/or came from the same gymnasium or from the same district, which ought to have suggested to him that the purpose for which these drugs would be used would be for other than recognised medical reasons and would fall outside recognised guidelines; that he had failed to observe the recognised therapeutic guidelines and ignored regulations about the prescribing of the drugs; had prescribed very large quantities of them on a regular basis and for protracted periods; had failed to document dosages, quantities, repeats, medical indications; had failed to document any medical indications from drug prescribing, indeed he said there was every indication there was no medical indication; that the purpose of his prescribing was to aid and abet the misuse and abuse of drugs for other than medical purposes; that he had treated these patients for almost no other reason than to supply this particular drug group; that he had supplied virtually on demand and apparently without challenge or warning and without documenting matters properly or adequate surveillance for possible ill effects. He said:
- “It may occur that peers of good repute and competence may not document dosages, quantity of medications prescribed and instructions on each and every occasion that medications are prescribed. Such conduct would occur in specific circumstances. Most peers would regard this as acceptable practice, with the proviso that at some point adequate documentation exists already in the patient notes, that the drugs prescribed are not liable to abuse or misuse, the patient has been a regular patient with a range of normal presentations for treatment rather than consultations restricted to reasons of seeking drugs of abuse. Practitioners of competence would fully document details of their prescribing when the drugs being prescribed are new to this particular patient, the drug is liable to drug inter-reactions, overuse or abuse. Dr Stewart’s conduct runs contrary to these conditions of good clinical practice and would therefore attract the criticism of his peers.
Conclusion
Dr Stewart’s conduct as described above attracts my severe criticism. His conduct attracts my strongest disapproval and in my opinion his conduct would attract the strong disapproval of my peers of good repute of competence.”
13 The Tribunal treats Dr Chung’s views with caution, given the defects underlying it to which I have earlier referred. Even so, the Tribunal accepts his views generally in relation to the way in which they refer to the matters which were put forward ultimately in the complaint.
14 Dr Chung was not cross-examined. Ms Katzmann contended that from what he had been given by the Commission he had obviously had regard for material which was never part of the complaint and that the strength of his criticism should be treated accordingly, and we do take heed of that. The Tribunal accepts that submission. As Ms Katzmann observed, if it were assumed that he had been given only the material which was relied on here now by the Commission there is nothing to say that he would not have come to the same conclusion, but it must be borne in mind that his mind might well be infected by the views that he had earlier expressed and the matters that he had earlier referred to which went beyond the complaint.
15 Ms Katzmann was critical of the Commission for not, as it were, putting the correct material to him and calling him to confirm if that was his view, that notwithstanding that he now had the correct material that was still his view. She submitted to us that at the least we should have caution in making any findings of professional misconduct absent a peer opinion properly based. We were referred to a similar matter, Graiche of 15 April 1998, where there was a great deal of peer evidence pointing in the direction of a professional misconduct finding in a matter involving similar considerations.
16 However, treating Dr Chung’s views as we do with caution and bearing in mind the criticisms of it, the Tribunal is of the view that there is ample reference by him to matters which do properly underlie the complaint as it ultimately proceeded in relations to Patients A to W so as to show that, though he did consider matters which were outside the complaint, he did when dealing when matters which were within the complaint have sufficient underlying material to give a great deal of weight to the views that he expressed, and in particular the extent to which he condemned Dr Stewart’s conduct in the various ways specified. The Tribunal accepts his views as having considerable weight, notwithstanding the defects mentioned.
17 Dr Stewart tendered a statement which dealt fully with the allegations. He had earlier responded to matters put to him by the Health Department, but in preparation for this matter there was tendered on his behalf a statement which was dated 23 August 2005 in which he said among other things that he is seventy-six years old and he has been practising medicine for nearly fifty years. He believes he is held in high regard by his patients and the local community and the medical practitioners who know him.
18 He completed his Bachelor of Science degree at Sydney University in 1951, then did the degrees of MB and BS at Sydney University, graduating in 1965. He was junior RMO in 1957 at Sydney Hospital, senior RMO there in 1958, registrar at Prince of Wales in 1959, clinical registrar at St Thomas’s Hospital in London in 1960 and in 1961 admitted as a Fellow of the Royal College of Surgeons, London, Edinburgh. Between 1961 and 1962 he was surgical registrar at South TWS Hospital Group; in 1962, surgical registrar at Hospital General St Helier’s Island Jersey. In 1963 he returned to Australia and was honorary medical officer at St Vincent’s Hospital and the Lismore Base Hospital, Lismore. In 1967 he was admitted as honorary surgeon to St Vincent’s Hospital and Lismore Base Hospital.
19 He was then involved in a bus crash in Cairns in 1989 and resigned his specialist appointments but continued appointments as a general practitioner VMO at the Lismore Hospital. He continued there in general practice and has practised there ever since. He has been a general practitioner for forty-two years and has a large practice and, as he says, he is devoted to his patients.
20 He said in relation to the complaint that he admits that he prescribed anabolic steroids; he ceased immediately his conduct was called into question; that his records speak for themselves; that at all times he believed he was acting in the best interests of his patients; that he believed that, were he not to issue the prescriptions which are relevant to the complaint, the patients were at risk of significant harm. He said:
- “I always felt that my role was to minimise and if possible avert harm to my patients. As I saw it at the time, the alternative of refusing the patients’ requests would only have driven them to seek the drugs from elsewhere where they would not be obtained without any medical supervision. It seemed to me that the alternative of a medical practitioner prescribing the drugs after a medical assessment was by far the better alternative. I did not arrange for liver function tests unless there were clinical grounds to justify them. Until I was so advised by the Pharmaceutical Services branch officers I was unaware that it was prohibited to prescribe anabolic steroids ‘in a quantity or for a purpose not in accordance with the recognised therapeutic standards of what is medically or dentally appropriate in the circumstances’. As soon as I was advised of this prohibition I ceased prescribing anabolic steroids. In the result I have not prescribed anabolic steroids to anyone for more than four and half years. In the cases mentioned in the complaint involving other drugs in particulars 3, 4, 5, 6 and 7, these were cases where the drugs had been prescribed by others. I recognise now that I should have made an independent assessment of the needs of the patients, however these are isolated cases in a long career.”
21 On behalf of Dr Stewart there were tendered significant and impressive references from patients and eminent Lismore community members and medical colleagues.
22 Dr Stewart gave evidence and in chief he was asked about the interview that he had had with Mr Thompson from the Pharmaceutical Services Board of the New South Wales Health Department. The Tribunal considers it of some relevance to look at some aspects of that interview which is in exhibit A. The interview occurred on 14 March 2001 and, having taken place, it was reduced to writing.
23 Dr Stewart made it plain during the course of that interview when his attention was drawn to the fact that he had been observed to prescribe anabolic steroids in extraordinary amounts that he had not personally initiated the treatment. He said:
- “They’ve all been treated with this stuff before I see them. Most of them are bodybuilders. Most of them I see need this for their employment. They’re employed in the security business or in the competition for the strong man bodybuilding competition we have around the state. If they don’t come to me they tell me they get it from the vet and I’m only trying to help them under their employment, and (2) in their risk of using unauthorized medicines from the vet.”
At p 5 he was asked:
“For all these people whose prescriptions I showed you or whose records you’ve got over there you prescribed anabolic steroids on request?”
and he said:
“Yes, for the two reasons. Their employment, I can’t deny them the ability to work and without these steroids you would not get a job as a security guard and they would not get a job as they perform at the strip acts that they put on, some of these people, and this is their livelihood.”
He went on to say:
“I examine them every time I see them. I do their blood pressures, their weight, and I listen to their heart and their chests and I give them a check-up and they say ‘It’s great to come and have a check-up doc and be under medical supervision’”
and he said that they had liver function tests but not very often.
24 At p 6 he was asked about a drug called Halotestin. There was reference to its being used by people with cancer, and he was asked about the therapeutic goods administration and his knowledge of it. Mr Thompson drew his attention to the therapeutic drugs administration and registered drugs being registered for certain dosage levels and for certain indications and said that so far as the law was concerned these were the only indications and dosages that could be prescribed unless there was access to authoritative literature that established doses and uses other than those referred to. Dr Stewart said:
“I was unaware of this. I thought I had the ability, being a medical practitioner, to prescribe what I thought the patient needed and what the patient needed and what they wanted.”
25 Then at p 8 in relation to limiting the amount that he gave to patients of the steroids he said:
“I do limit the amount they can have. If I think they want too much - a lot of these people give it to their friends too, I know that.”
Mr Thompson said:
“Q. So you’re quite aware that there is trafficking in anabolic steroids?”
A. Yes.
A. It does concern me, but the fact is that if I don’t give it the vet will, and it does concern me they’ll lose their job if they don’t have their body built right in the security industry and I’m denying them a method of employment.”Q. And that doesn’t concern you that the stuff that you’re prescribing might be used by these people?
At p 12 Dr Stewart said:
“My wife’s been on my back for this” - that is, prescribing steroids - “she said you’ll get into trouble over this. I said I think I’m a free man in this world and these people need it for their things, so I said - and she got onto me and I said I won’t give any to those any more because they’re running the group down there” - he was referring to Coffs Harbour group - “and I’m sure they’ll give it to others and that’s one reason why I’m cutting. I told them I would not give them any more.”
(That was in relation to his decision to stop prescribing.)
26 When he gave his evidence before the Tribunal, (and the Tribunal accepts that he stopped prescribing shortly before or some time before he was interviewed), that was at a time when he realised, he said, that the drugs were not being used properly. Further, he said that his wife had told him that trafficking may be occurring.
27 The Tribunal took him to concede when he gave evidence that some of his records were deficient but that he had been in practice for over forty years and that he had done certain things in relation to keeping records over the years which were in accordance with the way he had always done them without realising that they were deficient.
28 His attention was drawn to articles about prescribing of steroids and he said in effect that he was not aware of them. He did say that he would just prescribe steroids for the asking although there were some cases where he would decline requests. He said in the last four years he ceased doing obstetrics work and he has had mainly consultative surgery. He said he had honoured an undertaking he gave some years ago not to prescribe steroids and that he would not have prescribed steroids had he thought that they would be harmful. But in any event he observed that these patients for whom he prescribed these drugs were a very very small proportion of his extremely large practice.
29 It is clear that Dr Stewart is not patient with what he regards as medical bureaucracy and does not welcome some aspects of modern medical practice, including record taking and keeping and drug prescribing.
30 The Commission contends that the Tribunal should find by reason of the matters which it says it has proved that not only was Dr Stewart’s behaviour in his prescribing conduct in particular unsatisfactory professional conduct but also professional misconduct. In urging the Tribunal to find professional misconduct, the Commission referred us to Pillai v Messiter No.2 (1989) 16 NSWLR197 as to matters taken account of in finding professional misconduct. Ms Eastman for the Commission contended that the Tribunal should have regard for the cumulative effect of all of the conduct alleged and proved. Further, she contended that there was about Dr Stewart’s conduct in prescribing steroids in the circumstances alleged a wilful blindness, and it was that wilful blindness in effect which amounted in the circumstances she submitted to professional misconduct.
31 Dr Stewart was cross-examined at some length on his knowledge about whether or not there was anything wrong with prescribing to the patients to whom reference has been made. He said he knew before they came to him for the drugs that they were all getting them from vets, and he said “The vets were killing them. The vet stuff was knocking them about. They were putting some new oil in them.” He conceded that their main source before getting the drugs from him was from vets and that he prescribed it to make them strong and to replace the vet material, although he said that he did not know it was forbidden. He said he thought it was good for them because it increased their self-esteem and their happiness and their wellbeing, and it was only when his wife told him later when he realised that he’d been conned by these patients. His response in a letter to the Commission on 31 May 2002 appears somewhat at odds with that, where he said that his wife had warned him but that he had disagreed with her, and it was only when he was interviewed that he realised that he was mistaken. But the Tribunal sees that he may well be confused about the circumstances in which he did in fact find out. These matters the Tribunal does have some concern about. They came up essentially during the course of his cross-examination and they relate as we see it to the contention that there was a wilful blindness.
32 At p 58 of the transcript he was asked whether it occurred to him that the fact that the patients had told him that they had been using steroids obtained through a vet was some cause for concern. He said:
“It did worry me. I was slowly led in by the fellow called Harman and he was desperate. I mentioned him before and I took pity on him and I tried to help him, and I feel that even though I go through all this just the happiness I brought to that man will pay me back in my lifetime.”
Then the question:
A. Yeah it did. It worried me, yeah. I’ve never heard of anyone being fined or sued from using them as a bodybuilder.“Q. But did it not immediately cause you some concern that if the patients were obtaining these drugs from vets that there might be something suspicious about it?
A. Well I knew they were hard to get and they never told me there was but I knew it was difficult for them and that’s why I was willing to help them.Q. You became aware that there was a black market in relation to anabolic steroids?
A. Well they had to go to the vet to get them, therefore they’d have to do something about it.Q. How is it that you knew it was difficult for them to obtain the drugs, how did you know that?
A. It did occur to me, particularly when I was rung by a chemist at Charleville and he asked me what I was using.”Q. Did it not occur to you that if they had to go to the vet to obtain the drugs that there might be some prohibition or restriction on a medical practitioner prescribing the drugs?
At p 59 he was asked:
A. I’d have to say yes, but I felt that I had never known of anyone and I felt, well, like Stephen Harman had a case that I wanted to help with for his life.”
“Q. I’m asking you to take you mind back right to the beginning when the patients first attend and tell you they have been using these drugs through vet sources. At that point in time did it concern me that there may be some restriction or prohibition on a medical practitioner prescribing?
33 He said he was unaware that prescribing them was contrary to regulations. He said:
“I’d been doing it for two years. I hadn’t heard a word from anybody. I assumed it was satisfactory. If they’d phoned me from the Pharmaceutical Branch and said ‘We’re getting scripts coming through for this stuff, why are you using it?’ I’d have stopped.”
Then at p 69 he was asked:
“Q. You prescribed in a sense in bulk because they’d get a discount from the chemist, is that right?
A. It worried me.”A. That’s correct.
Q. Did it not concern you that that practice might have facilitated this illicit trade or trafficking?
He was asked:
A. I wasn’t aware of it but I was suspicious of it because they got so much they couldn’t possibly take it. I knew they were in little groups and clubs. They were gym people, they would sort of exercise themselves like community. These bodybuilders become a little community.”
“Q. You were aware weren’t you that some of the patients had given their drugs to others?
34 Dr Stewart was re-examined about some of the evidence he had given about his knowledge and at p 81 he was asked:
A. I still am.”“Q. You told Ms Eastman and the Tribunal that you’d had no experience of prescribing these steroids to bodybuilders for the period in question. Are you, and you said that you were, against prescribing it for bodybuilders
He was asked:
“Q. So what I want to ask you is this, if you were against prescribing it for bodybuilders, why did you do it?
A. I ask myself that often. I must have been too kind or too soft or too considerate with this lad who was really in trouble.
Q. But he was only one of twenty-two?
A. Once I’d done it with one and got away with it I decided it wasn’t a bad idea, and he was so impressed and improved because he wasn’t on vet stuff, I weakened.
Q. What do you mean by once you’d got away with it?
A. Well nobody complained. The chemist cashed the script and it was all going well.
A. No well I was doubtful, but I felt the need of this man was such that it was worth the chance to give it to him.Q. Were you anticipating a complaint?
35 The Tribunal takes account of the character evidence which was impressive and put on his behalf, and in particular the submission put by Ms Katzmann based on paras 17 to 19 of HCCC v Abou Hatoum [2004] NSWCA 30. Whilst the Tribunal is not satisfied that the doctor knew that any regulations proscribed what he was doing, it is its view from all of the evidence that he did have, as it were, a wilful blindness. That is, he was strongly suspicious that what he was doing was wrong and knowingly took no steps which he knew he ought to have taken to check to see whether or nor what he was doing was proscribed by regulations. The Tribunal is satisfied to the requisite degree, that is, comfortably satisfied on the balance of probabilities, that when he prescribed the steroids he knew that there were good reasons that the various patients had come to him, namely that they could not get them legitimately elsewhere as there were significant restrictions, or might have been, in place and he could have discovered this by access to MIMS and other like sources of information had he chosen to use them.
36 On the factual matters Ms Katzmann conceded that it was open to the Tribunal to find established all particulars save for number 3. She contended that number 3 was not established because Dr Chung had not dealt with that correctly in his opinion. He condemned the use of Temazepam between the period October 1996 to December 2000. The Tribunal accepts her contention about that. The Tribunal is not satisfied to the requisite degree of satisfaction that particular 3 is made out and that part of the complaint is dismissed.
37 Ms Katzmann contended that we ought not find professional misconduct and reminded us of the fact that the major concern of the Tribunal is protective rather than punitive. She referred us to HCCC v Litchfield [1997] 41 NSWLR 630 at 637. The Tribunal asks itself whether the protection of the public requires de-registration or suspension? Ms Katzmann submitted that the question is one which should have regard for present fitness, not fitness at the time of misconduct, and drew our attention to Prothonotary v Del Castillo [2001] NSWCA 75 at para 71. No doubt suspension is a matter which might well have been urged upon us shortly after the relevant conduct complained of, but the Commission concedes here that it is not appropriate to suspend or deregister and Tribunal agrees.
38 Ms Eastman for the Commission contended that the Tribunal should find Dr Stewart guilty of professional misconduct within the meaning of that expression in the section, and further submitted that it would be appropriate for the Tribunal to administer a reprimand (see s 61(1)(a) of the Act) and impose a fine of $10,000 (see s 62 of the Act) and also pay the costs of the Commission.
39 As I have observed, the Tribunal is comfortably satisfied on the balance of probabilities that all particulars save for 3 are made out. Further, the Tribunal is of the view that the conduct in the circumstances as found amounts to professional misconduct. However, although s 37 of the Act provides that professional misconduct is unsatisfactory professional conduct sufficiently serious to justify suspension from practising medicine or removal of a doctor’s name from the register, the Tribunal does not consider it should order either suspension or removal. First, Dr Stewart has had a long career and made a substantial and positive contribution in the practice of medicine, in particular in the Lismore area. Secondly, he has made a substantial community contribution. Thirdly, he concedes that he was wrong to have engaged in the practices particularised in the complaint and has not for some years prescribed steroids and will not again. The Tribunal is satisfied that he has honoured the undertaking that he gave some years ago not to prescribe steroids again. Next, as I have observed, he accepts the wrongfulness of the matters which are proved against him, in particular as they relate to the prescribing of steroids. Next, there has been a considerable delay since he was first interviewed about the matter in the matter’s getting on for hearing, so he has had the matter hanging over him for a very long time and over his family. Finally, the Commission, as I have observed, concedes that it is not appropriate that there be any suspension.
40 Having in mind Dr Chung’s views and Dr Stewart’s concessions both in writing and orally before the Tribunal particularly in relation to particular 1 of the complaint, however, the Tribunal does have concern about what might happen in the future. He has said in writing and orally to the Tribunal that he proposes to retire on 24 January 2006. Whilst the Tribunal accepts that he does intend to retire then and that he has made a very considerable contribution as a medical practitioner and in his community activities, it does consider that there should be some provision for the possibility that he may be persuaded to continue to practice beyond his current proposed retirement date. The Tribunal considers it appropriate that certain conditions be imposed therefore to ensure that if he does continue to or resume practice that he works in a group practice and does not prescribe steroids. These provisions the Tribunal sees as stemming not from any concerns about punishment but merely from a protective point of view.
41 Ms Katzmann submitted that the Tribunal ought not both administer a reprimand and impose a fine, but submitted in effect that we ought impose one or the other, particularly bearing in mind his career and contribution. Further, (and we are quite satisfied of this,) he did not derive any personal gain and did not have anything other than a desire to help. However, by reason of what we regard as the serious nature of the backing for the finding, our view is that we should accept the contention on behalf of the Commission.
42 Accordingly, the orders that we make are these.
(1) The Tribunal finds proved all particulars save for (3) in the amended complaint.
(2) The Tribunal is satisfied that Dr Stewart is guilty of professional misconduct.
(3) Dr Stewart is reprimanded.
(4) Dr Stewart is fined $10,000. That sum is to be paid to the Medical Board of New South Wales by 24 January 2006.
(5) The Tribunal directs that if Dr Stewart practises after 24 January 2006 his registration be subject to the following conditions:
(a) that he work only when there is another medical practitioner on site;
(b) that he not undertake any solo general practice work;
(c) that he not prescribe, possess or administer any anabolic steroid or androgenic steroid.
(6) Finally, the Tribunal orders that Dr Stewart pay the Commission’s costs.
KATZMANN: I wonder if I could raise two things your Honour?
DEPUTY CHAIRPERSON: Yes Ms Katzmann?
KATZMANN: Your Honour said that we had submitted that he did not derive any personal gain. The submission was that he was not driven by--
DEPUTY CHAIRPERSON: Not driven, sorry, I expressed that clumsily Ms Katzmann and that’s what I intended to say.
KATZMANN: Thank you. The second thing is this, whilst Dr Stewart’s intention plainly is not to continue practising medicine, if by some stroke of fate he were to be persuaded to come back and for some reason one of these conditions was impractical, to have the conditions varied he’d have to come back to the Medical Tribunal.
DEPUTY CHAIRPERSON: Yes well if he wants to he can go to the Board to vary those conditions.
KATZMANN: Thank you. Would the Tribunal then direct that the Medical Board have the power to vary any of the conditions?
DEPUTY CHAIRPERSON: Do you want to be heard about that Ms Eastman?
EASTMAN: No your Honour.
43 DEPUTY CHAIRPERSON: The Tribunal directs that in respect of any of the conditions in (5) the Board will have power to vary them.
KATZMANN: Thank you.
DEPUTY CHAIRPERSON: Anything further?
KATZMANN: As the Tribunal pleases. Can I thank you for the prompt decision.
DEPUTY CHAIRPERSON: Thank you both for your very careful and helpful submissions.
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