Medical Board of SA v Barbaro No. DCCIV-99-51, DCCIV-99-127 Judgment No. D121

MEDICAL BOARD OF SA v GIUSEPPE ROCCO BARBARO
[1999] SADC D121

Chief Judge Worthington, Members Last, Mills and Stott
Medical Practitioners Professional Conduct Tribunal

The respondent, Giuseppe Rocco Barbaro, a medical practitioner, has pleaded guilty to two complaints of unprofessional conduct laid by the complainant, the Medical Board of South Australia (the Board).
The first complaint (No 51/1999) dated 11 February 1999, concerns unprofessional conduct in New Zealand in July 1997. The relevant particulars are as follows:
1...... On or about the 16th of July 1997 the respondent completed and signed a form which was lodged at the Otahuhu branch of the New Zealand Registry of Births, Deaths and Marriages falsely notifying the birth of a child in Auckland, New Zealand on the 15th July 1997 to a woman named Connelly.
2.To the knowledge of the respondent at the time he filled in the form giving notice of the birth, no such birth had occurred at the time and place specified in the notice.
3...... To the knowledge of the respondent at the time he completed and signed the form giving notice of the birth, the woman Connelly was not the mother of the child concerned.
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5...... By the act of completing and signing the form giving notice of birth the respondent falsely pretended, with the knowledge that the pretence was false, that he was a medical practitioner who was present at the birth referred to in the form.
6.In the foregoing the respondent has been guilty of improper and unethical conduct.
The second complaint (No 127/1999) dated 15 April 1999, concerns unprofessional conduct in February, March and June, 1998. The particulars are as follows:
1...... On 6 February 1998 an undercover police officer calling himself Peter Harris (Mr. Harris) attended at the respondent’s surgery at 220 Waterloo Corner Road, Paralowie and told the respondent that he was not sick but that he needed something to keep him going as he was a truck driver. The respondent prescribed the prescription drug Duromine to Mr. Harris for its non-medical use as a stimulant.
2.Mr. Harris also attended the respondent’s surgery on 12 March 1998 and 18 June 1998 and on each of these occasions the respondent again prescribed Duromine for its non-medical use as a stimulant.
3...... The medical purpose for which Duromine may be prescribed is the management of obesity through its main function as an appetite suppressant.
4.At no time did the respondent obtain a medical history from Mr. Harris or undertake a clinical examination of him.
5...... On 5 March 19999 the respondent was convicted in the Magistrates Court of South Australia of two counts of prescribing a prescription drug to a person other than in the ordinary course of his profession, contrary to section 18(1)(a) of the Controlled Substances Act 1984.
6.In the foregoing the respondent is guilty of improper and unethical conduct in relation to the practice of medicine.
Both matters were heard together and proceeded principally on the basis of Statements of Agreed Facts. These were supplemented by some other evidence including, for the respondent, evidence from a psychiatrist, Dr De Pasquale, and a large number of testimonials from a cross section of the community including civic leaders, fellow medical practitioners, patients and clubs with which the respondent has been associated.
New Zealand Matter
The unprofessional conduct that occurred in July 1997 is admitted, but as conflicting submissions have been put on some aspects, it is necessary to refer to the facts in some detail, including a business relationship that the respondent had with Ms (Henrietta) Erika Langenbach, a resident of the United States of America. She and the respondent had business interests related principally to investment in the ostrich industry. In about September 1996 they arranged a short term loan of (Sing)$35,000 from Ms Miranda Eu backed by a jointly signed promissory note for a total of (Sing)$45,000 to be paid to Ms Eu on or before 1 December 1996. That note was not honoured.
Between 6 December 1996 and 4 February 1997 Ms Eu wrote five letters to the respondent requesting payment. Ms Eu did not chase Ms Langenbach because she resided in the USA. On 19 February 1997 Ms Eu’s solicitors wrote to the respondent demanding payment of the (Sing)$45,000 forthwith. It is also to be noted that Ms Langenbach was a director of Star International Limited and as at mid 1997, Ms Langenbach claimed that the respondent was jointly liable with another person for a debt of about $65,000 to that company.
On 10 July 1997 Ms Langenbach rang the respondent from Singapore. They discussed the ostrich industry and the money owed to Ms Eu. Ms. Langenbach also told the respondent of her plans to bring a baby to New Zealand, where she could obtain the necessary documents to enable a friend of hers to take the baby back to the USA. In the course of that discussion, the respondent agreed that he may assist with certifying the birth.
On the following day, 11 July, the respondent sent a fax to Ms Langenbach. In it he referred to the conversation of the previous day and advised that if there were “no legal complications”, he would help her with the “child situation”. He asked her to let him know when she was ready for him to come to New Zealand. He also stated that he had spoken to his solicitor about the Eu loan telling him “you promised to assist in the matter”. He then set out the suggested draft of a note that his solicitor would like her to provide as soon as possible, in which she was to state that she had used the (Sing)$35,000 for her own purposes and that she was the one who was personally indebted on the promissory note for the (Sing)$45,000.
On the next day, 12 July, Ms Langenbach arrived in New Zealand with a baby boy and a woman from Indonesia, Ms Lily Gouw. On 14 July Ms Charli Connelly arrived in New Zealand from Texas, USA. She was met at Auckland airport by Ms Langenbach and the baby. The plan was that after she had obtained the necessary documents, Ms Connelly would take the baby back to the USA pretending that she had given birth to the baby in New Zealand.
On the following day, 15 July, the respondent flew to New Zealand. Ms Connelly paid for that flight. Ms Langenbach, accompanied by Ms. Gouw and the baby, met him at Auckland airport and took him to a hotel room where Ms Connelly was staying. There were lengthy discussions involving Ms. Connelly, Ms Langenbach and the respondent. He was nervous. He questioned Ms Connelly about her medical history, including her fertility. She explained that she had been unable to become pregnant, but said that such records were eight years old and would have been destroyed. There is no doubt that the respondent was worried about proceeding with the bogus plan and concerned that when Ms Connelly returned to Texas, she might be caught out. However, he overcame his reluctance and it was agreed that a birth would be staged at the hotel.
Ms Langenbach told reception staff that her friend was about to have a baby and asked for a bucket of hot water and some towels, which she took back to the room. Ms Gouw remained at the hotel that night, but the respondent, Ms Langenbach, Ms Connelly and the baby left the hotel by a back entrance and stayed the night at a motel.
On the next day, 16 July, the respondent and Ms Langenbach attended at the Otahuhu branch of the Office of the Registry of Births, Deaths and Marriages. A registry clerk asked the respondent whether he was the doctor who had delivered the baby and he replied that he was. The clerk then gave him a notice of birth form, which the respondent completed and signed. In that document, he entered the date of birth as 15 July 1997, the place of birth as an address in Auckland, the name of the mother as Ms Connelly, with a residential address in Texas, USA, and, as required on the form, showed himself as the medical practitioner present at the birth.
Later that day, Ms Langenbach and the respondent attended a meeting at the New Zealand Ostrich Corporation and they inspected an ostrich farm. On that same day, Ms Langenbach also provided a letter addressed to the respondent’s lawyers. In it she said that she had spent the (Sing)$35,000 on a project of her own which did not materialise, and stated that she was therefore responsible for the use of those funds. The respondent returned to Adelaide on the next day, 17 July.
There is no doubt that at the time he completed the notice of birth, the respondent knew that he was supplying false and misleading information. There is, however, a dispute based on the agreed facts as to why he did it. It was submitted by Mr Stevens, for the Board, that his motive was mercenary. For the respondent, Mr. Waye submitted that we should not infer such a reason. He submitted that “possibly” the respondent was a person who could be dominated and “perhaps” he was endeavouring to placate Ms Langenbach because she had placed him in a precarious financial position. He also submitted that, according to his instructions, when the respondent saw the baby and the Indonesian woman while he was talking with Ms. Connelly, he formed the belief that this young child was probably abandoned and would have prospects of a better future in the USA with a woman of means, such as Ms. Connelly.
The standard of proof required in disciplinary proceedings such as this is the civil standard, namely proof on the balance of probabilities keeping in mind the gravity of the allegations being made (Briginshaw v Briginshaw (1938) 60 CLR 336). Depending on the circumstances, the reason for a medical practitioner engaging in unprofessional conduct can have an adverse bearing on the outcome of disciplinary proceedings. As such, it is not to be taken into account unless that onus has been discharged by a complainant.
Both the respondent and Ms Langenbach had signed the promissory note to Ms Eu. He was being pursued for the whole of the debt. In the course of a conversation about that debt, Ms Langenbach discussed with him a plan that she had to help a friend in the USA adopt a baby via New Zealand. On the next day, the respondent sent a fax to Ms Langenbach agreeing to help with the baby and confirming that she had promised to help with regard to the loan from Ms Eu. By that time a series of demands had been made on him for that money. In the fax he suggested a draft of an acknowledgment by her that she was the one responsible for payment of that money. He also asked that she contact him once she was ready for him to go to New Zealand. Five days later, on 16 July, the same day that he provided the false notice of birth and it was lodged in the New Zealand Registry, she gave him a written acknowledgment that she was personally responsible for using the money borrowed from Ms Eu. As he had requested in his fax, she addressed that letter to his solicitors. Not only are these matters and their sequence telling, the provision of that document is consistent with the reference in his fax to her promise to assist regarding that loan.
We are satisfied that the proper inference to be drawn from the evidence before the Tribunal is that the respondent engaged in this false pretence in the hope of alleviating his financial difficulties with Ms Langenbach’s assistance.
As to Mr Waye’s submission that the respondent acted as he did to placate Ms Langenbach because she had placed him in a precarious financial situation, this may have played a part, but that is still associated with some form of personal financial advantage. The evidence does not support the second inference suggested by Mr. Waye, namely that the respondent decided to help because on seeing the baby and Ms Connelly, he believed that the baby would have a better future in the USA. It is quite possible that he felt sympathy for the child, but the decision to travel to New Zealand to assist with the adoption plan was made some days earlier while the respondent was still in Adelaide. It was not a spur of the moment action on his part. It was carefully planned; he went to New Zealand with knowledge of that plan, and although he showed some reluctance while talking with Ms Connelly at the hotel, he nevertheless went ahead with it.
It is not possible to know what the respondent meant by saying in his fax of 11 July that he would help with the child if there were “no legal complications”. However, it should be noted that there is no support for any suggestion that he did not intend to break the law or to act unprofessionally.
It is accepted that although Ms Connelly paid for his flight, the respondent believed that it was to be Ms Langenbach who would pay. He had paid for her return air fare from the USA to Australia in November 1995. It was submitted that in his mind, the payment of the fare was nothing more than a return on a more expensive air fare that he paid for her in November 1995. That may well be so, but in our opinion it makes no difference to the overall picture.
Mr. Waye also submitted that to make a finding of mercenary intent would be contrary to some of the evidence submitted by consent, namely part of a letter of 6 September 1997, written by Ms Langenbach to the respondent while she was in a New Zealand prison. In that letter, she made a number of exculpatory remarks, not only about herself but about the respondent and in particular, that he “was trying to help without any personal gain whatsoever!” (sic). That bald assertion cannot stand in preference to the effect of the evidence to which we have referred. Apart from anything else, it does not tally with her own conduct in that on the same day as the false registration of birth was lodged, she provided the respondent with the very document he had been seeking from her regarding the loan.
It is not possible to point to the precise benefit obtained by the respondent or how effective Ms Langenbach’s acknowledgment of personal debt was. In the end, he may have received little or no benefit at all. But that is not the point. These were acts of gross dishonesty in the practice of his profession which were pre-planned and done with the prospect of self gain.
Prescribing Duromine

On 6 February 1998 an undercover police officer calling himself Peter Harris, consulted the respondent at his surgery. This and later conversations between them were tape recorded. Mr. Harris told the respondent that he was not sick but that he needed something to keep him going as he was a truck driver. He said that he had spoken with a friend at the White Horse Inn who told him that the respondent might be able to help. Mr Harris said that he had used “speed” but he did not want to use it any more, just “something that can keep me awake a bit would be good”. The respondent offered him Duromine, the medical use for which is in the management of obesity. The respondent said that he needed to weigh him. Mr Harris told him both his weight and height. The respondent established that he was not on any other medication or drugs, but did not conduct any clinical examination. He gave him a prescription for 30 x 40mg Duromine tablets with two repeats; in all, a script for 90 tablets. The respondent advised him to take one a day, saying:
“Just use them sensibly don’t go spreading the word about, right. The Government doesn’t want us to prescribe them too much, all right.”
Mr Harris filled the original script at a local pharmacy.
A little over a month later, on 12 March, Mr Harris again presented at the respondent’s surgery asking for more Duromine. The respondent noted that he had previously given him two repeats. Mr Harris pretended that he had left those in a truck at Mt. Tom Price and would not be going back there for a month. Without asking any further questions or conducting any clinical examination, the respondent gave him another script for 30 tablets with two repeats. As on the first occasion, Mr Harris then presented the prescription to a pharmacist, obtaining one container of Duromine and keeping the two repeat scripts.
On 18 June 1998, Mr Harris again attended at the respondent’s surgery asking if he could have some more Duromine. When the respondent asked if he had used up those that he had prescribed before, Mr Harris said he had, except for some he had left in a truck at Whitnoon. The respondent said that he should make them last a bit longer. He then asked Mr Harris whether he was getting the Duromine scripts dispensed in South Australia or interstate. Mr Harris said that he was getting them in South Australia and asked whether he should get them interstate. The respondent said:-
“It’s probably better I suppose ... Cos they, they’re starting to, to hammer down here.”
Again the respondent gave him a prescription for 30 tablets with two repeats and Mr Harris filled the original script after leaving the surgery.
On none of these occasions did the respondent obtain a medical history from Mr. Harris or undertake any clinical examination of him. In particular he did not take his blood pressure. Duromine is the trade name for phentermine, a drug that stimulates the cardiovascular system, raising blood pressure. That is something the respondent should have known and if he did not, it was easily to be found in the copy of MIMS in his surgery. The respondent did not prescribe the drug for a medical purpose, but for non-medical use as a stimulant.
On 5 March 1999 the respondent, on pleas of guilty, was convicted in the Magistrates Court of two counts of prescribing a prescription drug (not being a drug of dependence) to a person, other than in the ordinary course of his profession, contrary to s18(1)(a) of the Controlled Substances Act 1984. These offences related to 12 March and 18 June.
Quite apart from the illegality of his actions, the respondent failed in his professional duty, both to the person consulting him and to the community. He prescribed on inadequate information. Even if he had overlooked checking blood pressure on the first occasion, he made no attempt to check for hypertension on either of Mr Harris’s return visits on 12 March or 18 June. At no time did he warn of the side effects which, apart from hypertension, can include irritability. The quantity of drugs supplied at each consultation was very high and notwithstanding that on the first occasion, the respondent had given sufficient prescriptions for 90 tablets, he issued a script for another 90 about one month later. In high dosage, the drug can lead to unpredictable and aggressive behaviour. While it has some positive benefits in combating fatigue, there may also be negative effects, such that with high doses, there can be reactions that could lead to erratic driving. If the drug is taken over a long period of time and then stopped, there can be a rebound effect with the person feeling more tired and more hungry than normal. This could last for some days after ceasing use. In addition, the person may experience depression. Excessive tiredness (and possibly depression) would markedly impair driving performance during that rebound phase.
It is clear that the respondent knew that he should not be prescribing Duromine for non-medical use. He was devious in suggesting that it would be better if Mr Harris were to have the scripts filled interstate. The obvious reason for saying that was to avoid, or at least to minimise, the risk of his part being discovered.
No Medicare claim was made by the respondent for any of these consultations and Mr Harris just paid the receptionist.
Conclusion
The orders available to the Tribunal under s58(3) of the Medical Practitioners Act 1983 include a reprimand, a fine, conditions on practice, suspension for a period up to one year, and cancellation of registration.
It should be pointed out that the law has already punished the respondent for his unlawful conduct. On 16 March 1998, in the District Court of New Zealand, he was sentenced on two charges of using a document fraudulently for the purpose of obtaining a benefit for himself or another person, and fined (NZ)$10,000 on each charge. For the two offences under the Controlled Substances Act, on 5 March 1999 he was fined $4,000 on the count for 12 March 1998 and on the other (18 June 1998) he was sentenced to six months’ imprisonment, suspended on his entering a three year good behaviour bond.

The authorities make it clear that the purpose of these proceedings and of an order under s58(3) is not punitive but to protect both patients and the community generally, who rely on the integrity and the ethical behaviour of medical practitioners. It is from that point of view that the Tribunal must have regard to the respondent’s conduct and consider what action is appropriate. The effect of an order may seem punitive because it has a burdensome result, but that is not its purpose. (Rajagopalan v Medical Board of South Australia; Judgment No. S6667 unreported, Full Court of SA, 5 May 1998 per Mullighan J at page 10).
In our view the appropriate order is cancellation of the respondent’s registration as a medical practitioner. His conduct in New Zealand was grossly dishonest. In the normal course, the two most important types of certificate a practitioner is likely to write are birth and death certificates. It is trite to say that not only the person concerned, but many others rely upon and can be affected by the accuracy of a birth certificate . He debased his professional power to issue such a certificate for a selfish purpose. It was noted by the sentencing judge in New Zealand on 16 March 1998 that he was suffering great remorse for what he had done. Yet, on two occasions after he had been charged, the second as little as four days before being sentenced, he knowingly engaged in unlawful and unprofessional conduct in the supply of Duromine to Mr. Harris for a non-medical purpose. Three months after he was sentenced, he did that again.
Dr De Pasquale has been the respondent’s treating psychiatrist since January 1998. Since that time the respondent has been suffering from reactive depression brought about by his life setting generally, which includes the New Zealand matter. We accept that this condition would have some bearing on his general behaviour, but it does not provide either an excuse or a reason for his errant behaviour in prescribing the Duromine. Dr De Pasquale told the Tribunal that the nature of his depression was such that it would not impair his judgment or make him unfit for general practice.
Mr Waye presented detailed submissions about the respondent’s personal circumstances. As mentioned earlier, numerous testimonials were supplied to the Tribunal attesting to the respondent’s reputation as a person and as a practitioner, built over many years. We have considered these matters. There is no doubt that for many years, he has been held in high esteem among his patients and in the community generally. We accept that these opinions are genuinely held. However, despite them, it is our view that, bearing in mind the overall conduct of the respondent, he has shown such a fundamental lack of professional integrity and trustworthiness as a medical practitioner, that he is not a fit and proper person to practise. We can have no confidence that he would not compromise his integrity again if it suited his purpose. Bearing in mind our duty to the public, including potential patients, the appropriate order is to cancel his registration.
The respondent has a large practice. It is in the interests of his patients generally that he be permitted a short time during which there can be an orderly winding up of his practice, so that patients can be advised and arrangements made, as necessary, for management of their treatment to be referred to other medical practitioners. In our opinion it is reasonable to allow a period of about four weeks for that to occur. The cancellation of his registration will therefore take effect at the end of ordinary surgery hours on Wednesday 20 October 1999.
Costs have been agreed at $5,000.
Orders

The Tribunal orders that the respondent’s registration as a medical practitioner be cancelled on and from 20 October 1999. He will be permitted to wind up his practice during the intervening period.
The respondent will pay to the Board costs of $5,000.

[1999] SADC 121

22 September 1999