R v Gary Gow

[2006] NSWDC 78

CITATION:	R v Gary GOW [2006] NSWDC 78
HEARING DATE(S):	07/08/2006 - 14/08/2006 20/10/2006
JUDGMENT DATE:	27 October 2006
EX TEMPORE JUDGMENT DATE:	10/27/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [31] & [32]
CATCHWORDS:	Manslaughter - Doctor causes death of patient
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	Crown Gary Gow
FILE NUMBER(S):	06/11/0791
COUNSEL:	P. Adey (Crown) E. Fullerton SC (Offender)
SOLICITORS:	DPP Hughes and Taylor Solicitors

1 On 7 August 2006 Dr Gow was indicted on one count of manslaughter. He pleaded not guilty to that offence and a jury was empanelled. The Crown called its evidence and Dr Gow gave evidence on his own behalf. However at the completion of his evidence he changed his plea to one of guilty. He now stands to be sentenced for the manslaughter of one of his patients, Mr Wayne Ritchie.

2 Mr Ritchie suffered from a number of ailments including chronic back pain. He was being treated by a Dr McKay but when Dr McKay refused to prescribe morphine he went to Dr Gow. He first saw Dr Gow on 24 August 2004.

3 Dr Gow is a GP who also practices homeopathy. When Mr Ritchie first saw Dr Gow he asked for morphine, as he had Dr Mackay, but Dr Gow also refused to prescribe that drug to him. Instead he spent a lengthy period of time taking a history from Mr Ritchie and ultimately suggested that he try some homeopathic remedies. Mr Ritchie agreed. Mr Ritchie returned for a further consultation to discuss his treatment and then came back once more on 22nd

4 September 2004. On that day Dr Gow prescribed morphine for Mr Ritchie. It was the taking of that drug which killed Mr Ritchie.

5 Dr Gow prescribed morphine tartrate for Mr Ritchie. The quantity prescribed was 5 ampoules, each containing 120 milligrams of morphine tartrate. 120 milligrams is likely to be a fatal dose if it is injected at the one time.

6 Mr Ritchie had the prescription filled and bought some syringes as well. On 2 October 2004 Mr Ritchie was in considerable pain. He decided to take one of the doses of morphine which had been prescribed for him. With the assistance of his partner, Ms Sant, he injected the morphine tartrate into his thigh. He went to sleep and died about 12 hours later.

7 By his plea of guilty Dr Gow accepts that he breached the duty of care which he owed to Mr Ritchie in a way that was so serious that it merited criminal punishment. This was not a case where Dr Gow made a single mistake which led to the death of his patient. It is a case where Dr Gow made a whole series of mistakes and his plea of guilty correctly recognises in my opinion the gravity of those errors.

8 Firstly Dr Gow did not mean to prescribe morphine tartrate but instead meant to prescribe morphine sulphate. Morphine tartrate is used for severe intractable pain in terminal cancer patients. Although it comes ampoules of either 120 or 400 milligrams it is not intended that that quantity be administered in one injection. Instead it is to be slowly given to the patient over time using a device such as a syringe driver. Morphine sulphate on the other hand comes in various size doses: 5; 10; 15 and 30 milligrams. These smaller ampoules reflect the different use to which morphine sulphate is put.

9 Thus the first mistake that Dr Gow made was to prescribe a drug which was not intended to be used for the condition from which Mr Ritchie suffered. Mr Ritchie was not a cancer patient suffering severe intractable pain, and he was not going to administer the drug with a syringe driver.

10 The next mistake was that Dr Gow did not give any, or at least adequate, instructions to Mr Ritchie concerning how much of the drug to take. Mr Ritchie would not have died if Dr Gow had told him to use only a small portion of the quantity of morphine tartrate in a single vial.

11 The third mistake, related to the second, is that the prescription written out by Dr Gow does not contain any directions as to how the drug should be used. This is contrary to regulations governing the prescribing of schedule 8 drugs, of which morphine tartrate is one, but more importantly a serious mistake which led to Mr Ritchie being supplied potentially fatal doses of morphine tartrate without any written instructions as to the quantity he should use.

12 The fourth mistake is failing to recognise that he was prescribing the wrong drug when he referred to MIMS to find the quantities that the drug came in. On his prescription pad Dr Gow wrote down the quantity of morphine tartrate the pharmacist should supply. He got this information from MIMS. It was Dr Gow’s mistake in looking at the wrong drug in that book which led to him prescribing morphine tartrate in the first place. The fact that MIMS showed that the smallest quantity morphine tartrate available was five 120 milligram vials should have alerted Dr Gow to the fact that he was looking at the wrong drug.

13 He was more familiar with morphine sulphate which came in smaller doses and more importantly he should have realised that it was highly dangerous to prescribe for a patient’s self administration a potentially fatal dose of a drug. Dr Gow should have realised from this circumstance that it was not morphine tartrate which he intended to prescribe but morphine sulphate which came in more suitable quantities.

14 Dr Gow had no explanation for these mistakes. He considered that he prescribed morphine for Mr Ritchie because he felt under pressure. There is no doubt that Mr Ritchie was capable of putting his doctor under pressure. Mr Ritchie was also seeing Dr McKay and he described an event where, in order to demonstrate that he was capable of injecting himself, Mr Ritchie, without warning, injected himself with an Hepatitis injection. The next time he saw Dr McKay, Mr Ritchie, again without warning, injected himself, this time with a typhoid shot. Mr Ritchie apparently did this in order to persuade Dr McKay that he should prescribe morphine for Mr Ritchie to self-administer.

15 However whilst the fact that Dr Gow felt under pressure from Mr Ritchie may explain why he prescribed morphine on 22 September 2004 it falls a long way short of explaining how it came about that Dr Gow made the mistakes that I have already identified.

16 There is no doubt that Dr Gow is deeply remorseful for what he has done. That was obvious to any one who saw Dr Gow give evidence in his trial. It is further established by his plea of guilty, and by the material put before me including reports from two psychiatrists who have seen Dr Gow in the time since Mr Ritchie’s death.

17 There is one other significant factor which I will mention because it shows what a person Dr Gow is. It would have been open to him to lie in Court and to give evidence that he explained in detail to Mr Ritchie precisely how the morphine tartrate should be administered. Dr Gow could have told the jury that he instructed Mr Ritchie to use only a small portion of the contents of a single ampoule. He could have tried to shift the blame for Mr Ritchie’s death to Mr Ritchie himself by suggesting that Mr Ritchie had failed to follow his instructions. Had Dr Gow given that evidence no one could have contradicted him. Dr Gow did not do this, instead he admitted his mistakes when giving evidence and did not try to justify them in any way. This factor demonstrates clearly what is obvious from other material, namely that Dr Gow is a man of impeccable character, who is deeply ashamed of his mistake and who recognises the gravity of his error.

18 Dr Gow called evidence as to his character. I had already formed a favourable view of Dr Gow’s character even before character evidence was called. Dr Gow spent something in the order of 90 minutes with Mr Ritchie at his first consultation. That is the action of a compassionate and caring medical practioner who has the interests of his patients at the forefront of his mind.

19 This opinion as to Dr Gow’s character was confirmed when evidence was called following his plea of guilty. One of his patients, Ms Gaete works with medical practioners and was a midwife in her native Chile. She had never seen a doctor as caring as Dr Gow. She took her father to see Dr Gow. Dr Gow spent an hour with her father at their first consultation, something Ms Gaete had never seen in any other doctor despite her considerable contact with members of that profession.

20 There has been no suggestion that Dr Gow had made any other mistake in his lengthy career. The evidence establishes that he is a high quality medical practitioner who justifiably has the support of his patients and colleagues, despite the matter which now brings him before the court.

21 The offender was born in Sydney to parents of Chinese background. Their marriage was arranged and it was not a happy relationship. Dr Gow completed his university education in 1977 and has been practising as a doctor ever since. For a long time he has been practising as a general practitioner in the Wollongong area. He enjoys a close relationship with his wife, his daughter and stepdaughter.

22 At the time of this offence he was under a great deal of stress. He was in the process of moving his elderly mother from Sydney where she lived to Wollongong to be near him. For a while she lived with the offender and his family while his mother’s new house in Wollongong was constructed. The stress and associated tiredness he was suffering in October 2004 no doubt played a part in the terrible mistakes he made which led to Mr Ritchie’s death.

23 I received victim impact statements tendered on behalf of the Crown from Mr Ritchie’s partner, sister and daughter. In addition Ms Sant’s victim impact statement was read to the Court. It is appropriate that I acknowledge the loss that they have suffered. Victims of crime, and those that are left behind, often justifiably complain that the focus of Court proceedings tends to be on the offender and their loss is largely ignored. It is appropriate that I acknowledge the loss that they have all suffered and will continue to suffer in the years ahead.

24 It is widely understood that sentences for manslaughter vary widely, perhaps more than any other offence known to the law. This is because of the large variety of circumstances in which the offence can be committed. It was recognised by both the Crown and Ms Fullerton that the circumstances which have led to Dr Gow facing sentence today are most unusual and their combined researches revealed nothing of great assistance by way of comparative sentences either in New South Wales or other parts of Australia.

25 However what all manslaughter offences have in common is the death of a human being. That circumstance must of course be at the forefront of any thinking when deciding an appropriate sentence for an offence of manslaughter. Many of those sentenced for that crime, like Dr Gow, are people of impeccable reputation and character, but that must not be allowed to overshadow the objective gravity of what they have done.

26 As a human being Dr Gow, like all of us, suffers from human frailties. If I make a mistake I have the Court of Criminal Appeal to correct me, and in Dr Gow’s case his mistake should have been picked up by the pharmacist who filled Mr Ritchie’s prescription. That is of course not to excuse Dr Gow’s errors but it is to recognise that people, even professional people, make mistakes, and systems are set up to prevent a single mistake having a catastrophic consequence. There are no doubt many doctors practising medicine today who have made potentially fatal mistakes which were picked up by others before it was too late.

27 Despite the systems I have mentioned, prescription errors similar to those of Dr Gow, are regularly made. One of the references I read on behalf of Dr Gow was from a Dr Phillip Hoyle. He was formerly the general manager of Royal North Shore hospital and referred to an audit of adverse events in that hospital which showed that in a single year there were 10 serious prescription errors resulting in significant patient harm. This is one of the many reasons which suggests the need to impose a sentence on Dr Gow which will bring home to all of those involved in patient health care the seriousness which the law regards gross breaches of what is required of them.

28 Dr Gow made a series of serious mistakes, with terrible consequences and for that he must be punished. What happened to Mr Ritchie, and what will happen to Dr Gow should serve as a warning to other medical practioners, and pharmacists as well, of the dangers of not following the rules. Mr Ritchie would not have died if Dr Gow had done what was required of him.

29 The gravity of Dr Gow’s mistakes was recognised in Ms Fullerton’s submission that a period of imprisonment was an appropriate punishment for her client. Anticipating that that sentence would be one of 2 years or less she submitted that the sentence should be suspended.

30 The Crown agreed that a suspended sentence was an appropriate outcome in this case. Despite this agreement between the parties it has been necessary for me to form my own, independent, view as to the sentence I should impose.

31 I am satisfied that the gravity of the offender’s conduct and its consequences require that a sentence of imprisonment be imposed. I have found special circumstances, they primarily relate to this being Dr Gow’s first breach of the law. I set a non parole period of 12 months and a total sentence of 18 months. And finally I have decided to order that the execution of the sentence be suspended for the term of the sentence.

32 I direct that Dr Gow be released from custody on condition that he enter into a bond for the term of the sentence. Conditions applying during the term of the bond are:

· That he be of good behaviour,

· That he appear before the court if called on to do so at any time during the term of the bond, and

· That he notify the registrar of this court of any change of his residential address.

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