Re the Medical Practice Act 1992 and Dr. Ghalib Mohammad Talib Hamad

[2004] NSWMT 4

New South Wales

Medical Tribunal

CITATION:	Re the Medical Practice Act 1992 and Dr. Ghalib Mohammad Talib HAMAD [2004] NSWMT 4
TRIBUNAL:	Medical Tribunal
PARTIES:
FILE NUMBER(S):	40006 of 2002
CORAM:	Walmsley, SC DCJ - Child, Dr D - Kendrick, Dr J - Collier Ms A
CATCHWORDS:	Professional Misconduct
LEGISLATION CITED:	Medical Practice Act 1992 (NSW) Poisons and Therapeutic Goods Act 1966 Suitors Fund Act 1951
CASES CITED:	Wentworth v Rogers and Another (No 3) (1986) 6 NSWLR 642 ; Donelian v Donelian [2002] NSWSC 696; King v Tait (1952) 52 SR(NSW) 137 ; Thomson v Repatriation Commission [1999] FCA 1485 ; Briginshaw v Briginshaw (1938) 60 CLR 336; HCCC v Litchfield (1997) 41 NSWLR 630; Sabag v HCCC [2001] NSWCA 411; Pillai v Messiter (No 2) (1989) 16 NSWLR 197; Spicer v NSW Medical Board & Ors (Court of Appeal 19 February 1981)
DATES OF HEARING:
DATE OF JUDGMENT:	11 October 2004
ORDERS:	1. The Tribunal finds particulars 1,2,3,4 and 5 are proved. ; 2. The Tribunal finds that the practitioner's particularised conduct proved amounted to professional misconduct.; 3. The Tribunal reprimands Dr Hamad.; 4. The Tribunal orders pursuant to s 61(1)(d) of the Act that Dr Hamad at his own cost successfully complete a course operated by the Pharmaceutical Services Branch of the NSW Department of Health entitled "The Assessment for Competency of Schedule 8 Prescribing", within 6 months of the making of these orders.; 5. Dr Hamad is to advise the Medical Board of his successful completion of the said course within 2 months of completion.; 6. Pursuant to s 61 (1)(c) of the Act Dr Hamad's registration is subject to the following conditions:; (a) Within 6 months of the date when, pursuant to 5 above, Dr Hamad advises the Medical Board he has successfully completed the said course, he shall submit to an audit conducted by the Medical Board. The Tribunal recommends that the audit have particular reference to Dr Hamad's prescribing, administering and recording, of drugs of addiction.; (b) The Tribunal recommends that those conducting the audit include an officer of the Pharmaceutical Services Branch of the NSW Department of Health.; (c) The Medical Board may relieve Dr Hamad from compliance with such parts of these conditions as it considers appropriate. ; 7. Dr Hamad is to pay the Commission's costs of 4, 5 and 6 November 2002. Otherwise the Tribunal makes no order as to costs.

JUDGMENT:

IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES

THE MEDICAL PRACTICE ACT 1992

DEPUTY CHAIRPERSON:

HIS HONOUR JUDGE WALMSLEY SC

TRIBUNAL MEMBERS:

DR D CHILD

DR J KENDRICK

MS A COLLIER

NO: 40006/02

DR GHALIB MOHAMMAD TALIB HAMAD

REASONS FOR DETERMINATION
DATE: 11 October 2004

The Complaint

1. By complaint of 4 March 2002 (the complaint) the Health Care Complaints Commission (the Commission) says Dr Hamad (the practitioner) has been guilty of unsatisfactory professional conduct and/or professional misconduct: see ss 36 & 37 of the Medical Practice Act 1992 (the Act). It asks this Tribunal to reprimand him and make orders for his better education and the public’s safety concerning the prescribing of narcotic drugs.

2. The particulars in the complaint (as amended during the hearing) are:

1. Between 1 January 1997 and 30 October 1998, the practitioner issued prescriptions for the drugs of addiction pethidine and morphine on the dates, and to the 11 patients shown in … [schedules annexed … and marked with the letters A,B,C,D,E,F,G,H,J,K & L] … in quantities in excess of recognised therapeutic standards of what … [was] … appropriate in the circumstances.
2. Between 1 January 1997 and 30 October 1998, the practitioner issued prescriptions for pethidine to the patients and in the quantities shown in the schedules annexed … and marked with the letters A,C,E,F,G & K for continuous therapeutic use for a period in excess of two months without applying for or obtaining an authority to so prescribe from the NSW Department of Health, contrary to s 28(a) of the Poisons and Therapeutic Goods Act 1966.
3. On numerous occasions between 1 January 1997 and 30 October 1998, the practitioner failed to maintain adequate records of prescriptions for pethidine and morphine issued by him to patients, contrary to clause 84 of the Poisons and Therapeutic Goods Act Regulation 1994.
4. Between 1 January 1997 and 30 October 1998, the practitioner failed to keep a proper drug register, contrary to clauses 113 and 114 of the Poisons and Therapeutic Goods Act Regulation 1994.
5. Between 1 January 1997 and 30 October 1998, the practitioner failed to ensure that quantities of morphine and pethidine in his possession were stored in a sufficiently safe and secure receptacle, contrary to the requirements set out in clause 76 of the Poisons and Therapeutic Goods Act Regulation 1994.

3. Altogether the complaint concerns 11 patients. Due to the need for anonymity they have been given the letters A,B,C,D,E,F,G,H,J,K & L. Evidence tendered by the Commission identifies the patients by reference to those letters and for our purposes we need do no more than use the letters.

History of the hearing of the complaint

4. As is to be observed, the complaint is about what are said to have been significant failures in the practitioner’s obligations as a medical practitioner in prescribing drugs of addiction, keeping proper records of them and keeping them properly stored. It deals with the period from 1 January 1997 to 30 October 1998.

5. The complaint came on for hearing before a differently constituted Tribunal on 4, 5 and 6 November 2002. At the close of oral evidence on 6 November 2002 leave was given for the practitioner’s solicitor to provide the Tribunal with a bundle of documentary material, and submissions were directed to be given in writing. The documentary material was provided, and submissions in writing were made by the end of November 2002.

6. Unfortunately, due to the ill health of Judge Urquhart QC, Deputy Chairman of the Tribunal as then constituted, the Tribunal’s decision was not given.

7. The complaint came before the Acting Chairman of the Tribunal on 4 June 2004 and was set down for a new hearing before a differently constituted Tribunal. Two members of this Tribunal, viz Dr Child and Dr Kendrick, were members of the originally constituted Tribunal. The other two, Ms Anne Collier, and the Deputy Chairman, were not. The Tribunal as presently constituted, and the parties, were concerned to use resources involved in the earlier hearing, in an economical way. The parties agreed the transcript and documentary material from the earlier hearing ought be tendered in these proceedings. Further, it was agreed when the matter was set down before us that the parties would be permitted to put on material of an updating nature, and would have the opportunity to address us further orally. When the complaint came before us, neither party suggested we did not have jurisdiction to hear the matter. Judge Urquhart QC’s illness was not in issue. We were satisfied we had jurisdiction to hear the complaint. The relevant principles are discussed in Wentworth v Rogers and Another (No 3) (1986) 6 NSWLR 642 and Donelian v Donelian [2002] NSWSC 696 (Bell, J).

8. A suppression order was made in the other hearing as to the names of patients. Such an order was made here too.

The practitioner’s concessions

9. The practitioner concedes the factual basis for all particulars of the complaint, save in relation to particular 2, where his admission is confined to the assertion that without authority he prescribed pethidine to the patients and in the quantities shown in the schedules identified. That complaint alleges that the drugs were prescribed “for continuous therapeutic use for a period in excess of 2 months” without an authority from the Director General of Health. The practitioner says no authority was necessary, as none of the relevant prescriptions was for continuous therapeutic use for a period in excess of 2 months.

10. The Poisons and Therapeutic Goods Act 1966 does not define “continuous use”. There was before us some evidence about how the expression was understood by an investigator from the Health Department’s Pharmaceutical Services Branch (PSB), Ms Dolan, a pharmacologist and pharmacist, and from a peer reviewer, general practitioner, Dr Andrew Byrne. Ultimately the meaning of the expression and its application to the facts became the main contentious issue in the hearing of the complaint. We shall return later to consider whether that particular is made out.

Practitioner’s background

11. The practitioner is aged 63, having been born in Palestine on 4 December 1943. He had his secondary schooling in Pakistan and graduated from Punjabi University with the degrees of MB, BS in 1970. He then practised for 6 months in Beirut and in 1971 came to Australia. He became a resident at Sutherland Hospital at the end of 1971, and then was a resident at Canterbury Hospital in 1972. In 1973 he began private practice at 412-414 Beamish Street, Campsie.

12. He says that over his years of practice he has undergone courses in hypnosis, acupuncture, naturopathy, sports medicine, pain management, drug and alcohol problems and in psychiatry. For 13 years he practised in the obstetrics field at Canterbury Hospital and Greenoaks Private Hospital at Bexley. He also undertook minor surgery at Castlewood Private Hospital, Bexley Private Hospital, Greenoaks Private Hospital and Canterbury Private Hospital. Since 1984 he has taught community medicine through the University of NSW, having at times had final year medical students working with him for 2 week periods to develop clinical expertise.

13. He has 4 children. He says that at the time the events which concern the Tribunal occurred, he was in the throes of a marital break up and Family Court proceedings.

14. In the late 1990s he moved his practice from Beamish Street Campsie to a 24 Hour Medical Centre at Anglo Road, Campsie.

15. On 19 August 2003 he ceased practising from the 24 Hour Medical Centre at Anglo Road, Campsie. From that date until 4 November 2003 he did not practice.

16. On 4 November 2003 he began a new practice from rooms at 438 Hume Highway Yagoona. He has practised there ever since. About one third of the 2,000 to 3,000 patients from his Campsie practices followed him there. His patients are mainly Arabic speaking.

Background to the complaint

17. The practitioner came to the attention of the PSB in late August 1998 when PSB officers learned that unusually large quantities of 100 mg pethidine ampoules were being dispensed by a Campsie pharmacist on prescriptions issued by the practitioner. At that time, one of the PSB investigators, Ms Dolan, calculated that up to 125 ampoules per month had been prescribed by the practitioner throughout 1997-98. That was unusual because evidence suggests that most general practitioners do not prescribe more than 5 ampoules per month, and even those who have patients with chronic pain prescribe less than 20 ampoules per month. Under the national health scheme a practitioner may obtain free of charge for his or her doctor’s bag 5 ampoules of pethidine and five of morphine per month. Where those drugs are used in their surgeries, doctors usually use their bag supplies. If greater quantities are needed, a doctor will write a prescription, and the patient will have it filled and bring it to the doctor for administration. Alternatively, the doctor may order a quantity, keep it on his or her premises, and charge the patient for it at the time of administration. Clause 76 (1) of the Poison and Therapeutic Goods Regulation 1994 requires a person in possession of drugs of addiction to keep the drug in his or her possession stored in a separate room, safe, cupboard or receptacle securely attached to a part of the premises and securely locked when not in use. A practitioner is taken to comply with this clause if the drug of addiction (for use in an emergency only) is kept in a bag in a room or vehicle which is itself kept locked when not occupied by the practitioner (cl 76 (2)). Clause 113 requires a person in possession of drugs of addiction to keep a drug register, in the form of a book, whose pages are consecutively numbered, so bound they cannot be removed or replaced, and contain provision for the inclusion of relevant entries. On the day a person receives possession of, supplies, administers or uses a drug of addiction, he or she must enter in that register in relation to the drug its quantity, the name and address of the person to, from or by whom the drug was received or used, the prescription number (if the drug was supplied by prescription), the name of the practitioner issuing the prescription, the name of the practitioner under whose supervision the drug was administered, and the quantity of drugs of addiction remaining at that place after the transaction has occurred. Each entry must be dated and signed by the person who makes the entry. Normally, said Ms Dolan, a doctor’s drug register would accompany his or her bag. So if drugs were administered away from the practice premises records could still be kept up to date.

18. Ms Dolan became aware in the course of her enquiries that although he had prescribed a large quantity of pethidine the practitioner had made no application for any authority under the provisions of s 28 Poisons and Therapeutic Goods Act 1966 in respect of any patient for whom pethidine had been prescribed. Division 2 of that Act is headed “Restrictions on prescribing drugs of addiction”. Section 28 provides as follows:

“Except as may be authorised by the regulations, a medical practitioner shall not prescribe for or supply to:
(a) any person a drug of addiction (not being a drug of addiction that may be prescribed or supplied in accordance with paragraph (c)) for continuous therapeutic use by that person for a period exceeding 2 months or for a period which, together with any other period for which he or she has prescribed that or any other such drug or, together with any other period for which that or any other such drug has, to his or her knowledge, been prescribed or supplied by any other medical practitioner, would result in that drug, or that drug together with any other such drug, being prescribed for continuous therapeutic use by that person for a period exceeding 2 months,
(b) any person who in the medical practitioner’s opinion is a drug dependent person any drug of addiction (not being a drug of addiction that may be prescribed or supplied in accordance with paragraph (c)), or
(c) any person any drug of addiction prescribed for the purposes of this paragraph, unless the medical practitioner so prescribes or supplies that drug in accordance with an authority in respect of that person given to the medical practitioner by the Director General under section 29.”

19. Pethidine and morphine are drugs of addiction. Pethidine has been used in medical practice throughout the world for many years as a fast acting analgesic.

20. Two PSB officers visited the practitioner on 17 September 1998. The practitioner confirmed having issued the large number of pethidine prescriptions, saying the pethidine had come into his physical possession in several ways. Patients would have it supplied on prescription and then bring it to him to administer, or he would buy it for them before administering it. He would keep unused ampoules in a locked drawer, he said. He showed them the drawer. It contained 27 ampoules of pethidine. The drawer was in a desk. The drawer was lockable. But the desk was not affixed to the wall or the floor. No drug register was available for inspection. The practitioner said he had had one until June 1998 but that his estranged wife had taken it.

21. He agreed he had not applied for authorities to prescribe pethidine but maintained he had not been obliged to, as none of the prescriptions had been prescribed for “continuous therapeutic use … for a period exceeding 2 months”. He denied having administered any of the pethidine to himself. Indeed, there was no suggestion before us that he had.

22. Observations from a visit by investigators three weeks later suggested that a large number of ampoules of pethidine, though apparently prescribed by the practitioner, were not recorded in relevant patient records, let alone in any drug register. Since the previous visit the practitioner had not applied for any authorities to prescribe pethidine. Further, the investigators formed the view that some ampoules, at least, had been administered, where appropriate indications had not been present. He had begun to keep a rudimentary, but unsatisfactory, form of drug register.

23. During 1999-2001 the Commission corresponded with the practitioner or his solicitors about issues raised by the investigations. By letter of 7 September 2001 the Commission told the practitioner a complaint would be made under s 40 of the Act . He was given a copy of a report from a peer reviewer, Dr Byrne. Dr Byrne had commented on the practitioner’s treatment of patients A,B,C,D,E,F,G,H,J,K & L.

24. Dr Byrne condemned the practitioner’s treatment of those patients. Medical indications, he said, were lacking, for opioid injections on some occasions: symptoms and signs leading to the treatment were rarely documented adequately. Sometimes the drug was named in the notes on the day the prescription was dispensed. On other occasions there was no relevant entry. He said quantities of pethidine given exceeded what was necessary or prudent for normal treatment, and that issuing continued injectable opioids was now frowned on, oral drugs being safer and equally effective for pain control. He assessed pethidine’s effectiveness as of short duration and said it accumulates, and may cause complications such as convulsions.

25. Dr Byrne labelled the practitioner’s failure to document administration of opioids a “serious breach” of good practice. Storing drugs in a drawer, he said, was highly irregular and inconsistent with good practice, and, having such a large number of ampoules in a drawer, as here, was to be deplored as “dangerous” and “irresponsible”. Failure to maintain a drug register, he said, was very worrying.

26. He concluded most doctors of good repute would be severely critical of the practitioner’s behaviour, his prescribing habits and lack of an appropriate drug register.

27. The practitioner was invited to respond. By his solicitor’s letter of 24 October 2001 he did so. In that response, he maintained (as he has all along), that authorities had not been needed for long term use of narcotic drugs; he conceded he had not kept adequate records of pethidine prescriptions, but maintained that he had kept narcotic drugs properly secured. He maintained there had been appropriate indications for administering pethidine. He gave details for each relevant patient. In responding, he took a somewhat indignant and defensive approach.

28. When the complaint came before the Tribunal on 4 November 2002, the practitioner admitted particulars 3 and 4 of the complaint, viz failing to maintain adequate records of pethidine and morphine, contrary to Cl 84 Poisons and Therapeutic Goods Regulation 1994 (particular 3) and failing to keep a proper drug register contrary to Cl 113, 114 of the same regulation (particular 4). After the lunch adjournment on 5 November 2002 he admitted particular 1. That is the particular which alleges the practitioner prescribed pethidine and morphine for patients A,B,C,D,E,F,G,H,J,K & L in quantities which exceeded recognized therapeutic standards of what was appropriate in the circumstances. At the time the admission as to particular 1 was made, the practitioner also admitted, in relation to particular 2, that he had not applied for authorities in respect of any of the patients there named, for any of the quantities of the drugs shown in schedules A,C,E,F,G and K. That admission did not extend however to an admission that there had been a legal requirement to make any such application.

29. At the beginning of the third day of that hearing, while the practitioner was in evidence in chief, he conceded particular 5, viz failing to ensure quantities of morphine and pethidine in his possession had been stored in sufficiently safe and secure receptacles, contrary to Cl 76 of the Poisons and Therapeutic Goods Act Regulation 1994.

30. Ms Dolan, whose reports were before the Tribunal, gave oral evidence. She drew attention to a Health Department document (in evidence) called “Guidelines for the management of patients with chronic non-cancer pain”. According to that guideline pethidine is not usually the drug of choice in chronic pain since it is very highly addictive and has potential for abuse. Her view of the expression “continuous” in s 28(a) Poisons and Therapeutic Goods Act 1966 , involved the notion it was prescribed on a “regular basis”. She said it was not uncommon for authorities to be issued by the Director General where a patient has no more than 5 ampoules injected in a month.

31. Ms Dolan explained that her examination of the practitioner’s records revealed that he would commonly write a script for, say, 5 ampoules of pethidine, administer one, put the other four in a drawer and use them later, either for that or some other patient. Of itself that would not have presented a difficulty, but the lack of a drug register made it impossible to trace the origin or destination of the pethidine ampoules. The drug register the practitioner said his estranged wife had taken was never produced, either to her or this Tribunal. He did, after the PSB investigator’s first visit, keep a record, albeit one Ms Dolan said was inadequate (not bound, no record of origin of ampoules, different drug strengths recorded on a page). Ms Dolan conceded that despite that document’s shortcomings, she did not conclude the practitioner was trying to hide his pattern of pethidine administration.

32. Ms Dolan prepared a drug use document, having had access to the patient notes for patients A,B,C,D,E,F,G,H,J,K & L. She observed significant differences between the quantities noted as having been prescribed, and those noted as having been administered. For example, for patient “L” 85 ampoules were prescribed, but only 35 administered, the balance of 50 being unaccounted for.

33. The peer reviewer, Dr Byrne, gave evidence and was extensively cross examined. Dealing with s 28(a) Poisons and Therapeutic Goods Act 1966 he said of the two month period “if the doctor was writing a prescription which would cover the patient for longer than 8 weeks, my reading of the Act is that one should seek an authority”. He was dealing there with a hypothetical question put to him about a patient suffering from terminal cancer. But the Tribunal took what he said to illustrate his practice in such a case. At T 113 the following question and answer appear:

“Q. If a doctor took the view that continuous use meant usage virtually on a daily basis or every two to three days within a two month period as grounding the need for authority but not otherwise, what would you say about that?
A. I would say that is an interpretation. It is not my interpretation but it is an interpretation. Can I just add one thing to that, that because of the confusion I rang the Health Department many years ago to ask them what that continuous meant and it used the term, as I recall, “if the prescription was still current during those two months”, in other words, if those ampoules or tablets were still being used or available to be used for that patient for that condition. Because I had a patient who had another condition that came up six weeks later that may have required narcotics into the third month and I just required clarification. The Health Department people said it would be prudent to put in an application anyway, Dr Byrne, for this uncontroversial use of the drug. And many of these uses may be uncontroversial but they fall into this category where they need an authority and a declaration to the Health Department of the patient’s condition.”

34. He agreed a prescription may say the drug is to be used daily or when required, and he considered, both “daily” and “as required” were consistent with “continuous therapeutic use”. But he conceded this was “just based on my conservatism – I mean my conservative reading of the words – and also my instructions from the pharmacists under the Act”.

35. The practitioner gave evidence and was extensively cross examined. He freely conceded he had not always recorded having administered pethidine. One reason he said was patients would come to his house and wake him up and he would give an injection from his bag and would not have the patients’ notes with him so would not make a record. His patients were accustomed to having him available to them. Thus they would see him at his home after hours. As to that arrangement he said “I couldn’t change that during that time of anguish … so that [I] was trying to keep up my work and my honesty with my patients under the difficulties I was going through”. There were other pressures in his life, he said. His wife left him and there was a “vindictive” divorce and he had to sell his house for a Family Court settlement. His children were at tertiary education level and he was working very long hours; he was depressed and had consulted a psychiatrist. Such pressures were responsible, too, he said, for his not keeping a proper drug register. Insofar as he had begun to keep records after the first visit by PSB inspectors he conceded they were unsatisfactory and he appeared to be in a state of confusion about whether they covered all drugs in his possession – that is in his bag and in his rooms. He said that once he faced what he described as “pressure” and “hassle” from the Health Department, he began to look at his prescribing patterns.

36. In fact it would appear that from the time when investigations began, the practitioner almost ceased prescribing pethidine. He did, however, prescribe it occasionally. He conceded in cross examination he had prescribed morphine in 2001 for a patient described by the pain management clinic at Royal Prince Alfred Hospital, as an analgesic abuser and whom he knew to be a “doctor shopper”. But, he said, she was in “acute pain, so I had to do something about it”. He had however taken to referring patients in urgent need of pethidine or morphine to one of his colleagues. Further, he had begun to work fewer hours.

37. In evidence in chief he said of particular 2, and his view about “continuous therapeutic use for a period in excess of two months”, inter alia:

“I thought continuous treatment is a treatment which if needed for two months is needed for 60 days”.

38. He asserted that though he had over prescribed he had not over administered, and that unused pethidine prescribed for one patient might be used for another. Or, he might have administered the pethidine to a patient for whom it was prescribed, but have made no note of the fact. He was unable to say what proportion was in each category, but insisted, “I know I am sure that all of the ampoules were used with patients with severe pain and they were not misused”. Though he had not kept notes of drugs administered after hours he said his memory for these matters was good, thus “It is not really dangerous to my patients”.

39. For the purpose of the proceedings before us, Ms Dolan prepared an updating report dated 6 September 2004 [part of Tab 4 of Exhibit A]. She had recently enquired of pharmacies in the area serviced by the practitioner’s current practice as to whether and if so what, drugs of addiction, had been prescribed by the practitioner. Her enquiries revealed that in the Yagoona area, though many of his scripts had been dispensed since 1 January 2004, none were drugs of addiction. She checked also in his former area of Campsie. A number of scripts he wrote were dispensed in that area. At Dodds Pharmacy a print-out of “Schedule 8” prescriptions from 1 October 2002 to 31 August 2004 for drugs of addiction showed that of Schedule 8 prescriptions, only one was for pethidine, and that was on 28 January 2003. She concluded as to that period: “It does not … appear … that Dr Hamad prescribed in excess”. Further, it appears that insofar as he had prescribed drugs of addiction, there was no apparent reason for him to have asked for an authority under s 28(a).

40. The practitioner gave some supplementary evidence before us. He said that on 19 August 2003 he had ceased practising in Campsie. There was a break of several months. Then he commenced a new practice at 438 Hume Highway, Yagoona. This evidence was then given:

“Q. How do you treat patients who present to you episodically with those conditions now?
A. I think I just follow another policy now, since the tribunal of November 2002. I explain to patients, frankly and openly, that I’ve had some problems with writing these injections with the Health Department and I’m going through legal proceedings and, in case they get similar pains, that they think they’re not subsiding on other non-narcotic analgesia, to go straight to the hospital or to the medical centre.”

41. He said he is now more likely to refer patients to pain management clinics and has stopped prescribing morphine. The one prescription he recently gave for pethidine he said was for a person in severe pain after a fracture of a forearm. He adhered to the admissions he had previously made.

42. In cross examination he said he now has a drug register, though he only obtained it a few days ago and it contains only one entry. He has a lockable cupboard in his new premises but it is not yet attached. He says he intends to prescribe drugs of addiction when indicated.

43. He was cross examined about his knowledge of his obligations to keep and maintain records of drugs. He said that whereas his past practice (at least in the period 1997-98) was not to record drugs given if called out at night, he recognised that was erroneous and he would now record them whenever given. He now has a computerised system of making notes, and records relevant details the day following a relevant after hours visit. He says in his new practice he takes more time. He was again cross examined about the obligations imposed by s 28(a) Poisons and Therapeutic Goods Act. Although he again referred to the view that two “continuous months” involved in the relevant context sixty consecutive days, he indicated a more ready need to consult the Health Department “before I commit myself”.

Section 28(a) Poisons and Therapeutic Goods Act

44. To the Tribunal’s observation, the intention of the section is to ensure the Director General of Health gives authority where a practitioner prescribes or supplies a narcotic drug “for continuous therapeutic use” “for a period exceeding 2 months”.

45. Before an authority becomes obligatory therefore, the period of therapeutic use must:

(a) be continuous; and

(b) exceed 2 months.

46. The meaning of “continuous” must, we consider, depend on the context: King v Tait (1952) 52 SR(NSW) 137 @ 139-140 (Street CJ). Whether an activity or situation is “continuous” is “all a matter of fact and degree”: Thomson v Repatriation Commission [1999] FCA 1485 (Heerey J) @ [10].

47. The Oxford English Dictionary Online says of “continuous” inter alia it is:

“1. (a) characterized by continuity; extending in space without interruption of substance; having no interstices or breaks; having its parts in immediate connexion; connected, unbroken.
(b) in unbroken connexion with; joined continuously to; forming one mass with …

2. (a) of immaterial things, actions, etc; uninterrupted in time, sequence, or essence going on without interruption; connected, unbroken …

3. …“continuous voyage”, a voyage which, though interrupted by stops at ports or otherwise, is regarded as a single voyage in reference to the purpose for which it was undertaken”.

48. The Tribunal sees the word “continuous” in s 28(a) as involving the notion of continuity of use though not necessarily involving administration every day. Once the number of consecutive months during when such treatment is administered (even once every two or three weeks) reaches more than two, the Tribunal sees the continuity the section contemplates will arise. Sometimes it will be obvious to a practitioner immediately that a patient will have a need to have a narcotic drug daily, weekly, or less than weekly for more than eight weeks to come. So he or she may then be expected to make an application. In other cases, since the rate of use of the drug may be expected to reduce, it may not be apparent until towards or at the end of two consecutive months that the need for the drugs will extend beyond two months and therefore an authority will be needed.

49. The Tribunal rejects the notion put forward by the practitioner that authority is only needed where a narcotic drug is administered for more than sixty consecutive days. That we see as an artificially strict interpretation.

50. Counsel for the Commission submitted that where the drug is given during two or more consecutive months, so long as the break between ampoules is not “substantial”, the necessary continuity would be present. Counsel took the Tribunal to the schedules for patients A,C,E,F,G & K in the complaint to show the relevant continuity. For example schedule A shows pethidine prescribed for patient A on 14 and 26 March 1998, 22 April 1998, 9 May 1998, 8 July 1998, 18,19 and 20 August 1998. We were invited to see a notional 2 month period commencing from 14 March 1998 and extending to 14 May 1998, making the prescribing of pethidine on 8 July 1998, and 18, 19 and 20 August 1998 breaches of s 28(a). For patient C, the 2 month period, it was said, can be seen to run from 17 November 1997, there being a consistent pattern of prescribing from that date through to January 1998. Thus, counsel submits, all prescriptions from 16 February 1998 onwards are in breach.

51. The two month period starting date for patient E, it is put, is 22 August 1997, so that all prescriptions from 19 November 1997 onwards put the practitioner in breach. As to patient F, it is said, one ought see a two month period beginning on 10 February 1998. Thus all prescriptions from 18 April 1998 onwards would put him in breach. As to patient G, the two month period is said to have begun on 11 May 1998 and ceased on 11 July 1998, so all prescriptions after that put him in breach. For patient K the two month period is said to have begun on 19 April 1998, finishing on 19 June 1998, so that those on 24 August 1998, 7 September 1998 and 19 October 1998 put him in breach.

52. Thus, the Commission’s argument is, it is sufficient to show breach of s 28(a) if the evidence establishes that during the course of treatment one may identify a two month period commencing at least two months before the date of the most recent prescription during when the drug is given at least monthly, followed by another prescription soon afterwards.

53. It is not possible to be definitive about what will, and what will not, constitute prescribing for continuous therapeutic use for a period exceeding two months. Each case must be looked at individually. We see what the practitioner has done here however as prescribing for continuous therapeutic use for a period exceeding two months. The Tribunal accepts the Commission’s submission as to how s 28(a) ought be applied. It considers that in respect of each of the patients, A,C,E,F,G and K, there was such a degree of continuity from the dates identified above for more than 2 months starting at the beginning of each said “notional” two month period, that by continuing thereafter without authority to prescribe pethidine for them, the practitioner was in breach of s 28(a).

54. The Tribunal is comfortably satisfied on the balance of probabilities particular 2 of the complaint is made out.

55. All particulars are proved to the requisite degree of proof: Briginshaw v Briginshaw (1938) 60 CLR 336 @ 360; HCCC v Litchfield (1997) 41 NSWLR 630 @ 635.

Findings

56. We do not understand the practitioner’s solicitor to have submitted other than that the Tribunal ought find the practitioner guilty of unsatisfactory professional conduct. However counsel for the Commission urged us to go further, and make a finding of professional misconduct. As s 37 of the Act provides, that expression for the Act’s purposes, 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”. Whether the degree of seriousness is sufficient as to warrant suspension or deregistration is a matter of degree and judgment: Sabag v HCCC [2001] NSWCA 411 @ [82], per Sperling J.

57. Counsel for the Commission referred us to Pillai v Messiter (No 2) (1989) 16 NSWLR 197 @ 200, where Kirby P, speaking of misconduct in a professional respect, said something more than professional incompetence or deficiencies in the practice of the profession 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 privileges which accompany registration as a medical practitioner.”

58. The Court of Appeal has had occasion to pay particular attention to a medical practitioner’s heavy responsibilities in the handling and prescribing of drugs. In Spicer v NSW Medical Board & Ors (Court of Appeal 19 February 81) Hope JA said:

“…[T]he proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows disregard to the law, it cannot be said that he is fitted at such a time to be a medical practitioner”.

59. Counsel for the Commission submitted that by reason of the degree to which there had been over prescribing of pethidine, lack of proper records, and lack of security for the drugs under his control, the practitioner’s conduct was so serious it warranted a finding of professional misconduct. After the earlier hearing, before a differently constituted Tribunal, the Commission submitted the practitioner’s right to practice ought to be suspended for 6 months. However, for reasons including the time which has elapsed since the last hearing, that submission was not maintained before us.

60. The Tribunal considers the practitioner’s prescribing and recording of drugs he administered, and kept, was, during the period the complaint refers to, well below the standard of conduct of a competent medical practitioner. It accepts the view of Dr Byrne that his conduct “departed from accepted standards to a very great degree”.

61. Although the Commission no longer urges for the practitioner’s suspension, it does not submit his proved misbehaviour does not justify suspension. The Tribunal considers the proved misconduct is of a sufficiently serious nature as to justify suspension. We do not see it as a deliberate departure from the necessary standards, however. We do not think we should now order suspension. We agree with the Commission’s submission that by reason of the time which has passed since relevant events occurred, suspension would be inappropriate.

62. We accept the practitioner’s evidence that at the time to which the complaint relates, the practitioner was under a great deal of personal pressure from the demands of a large and personal practice, from a marital breakdown, and of a financial kind.

63. The Tribunal is persuaded that since, and by reason of the investigations which led to the complaint, the practitioner has taken some significant steps to prevent repetition of the causes for the complaint. Bearing in mind the evidence as to the practitioner’s past and present practices relating to drug prescribing, recording and storage, the Tribunal is of the view public safety requires the practitioner undergo an appropriate course of education, and that there be an audit of his drug prescribing, recording, and storage. The evidence before us suggests that a significant quantity of pethidine was prescribed by the practitioner in 1997-98 but not accounted for in records. It was not suggested he used it, either for self-administration, or for sale. But it is a matter which has caused us concern, and confirms the gravity of his failure to keep proper patient records or a drug register. The Tribunal has considered how it ought enforce any arrangements made for the practitioner’s further drug education, and for necessary supervision. It has received an offer from the practitioner of an undertaking. But it sees difficulties in enforcement of such undertakings. It considers it ought however make an order that his right to practice be subject to a condition that he submit to an audit of his prescribing, administering and recording of drugs of addiction following a course of education.

64. The Tribunal accepts the Commission’s submission that it should deliver a reprimand to the practitioner.

65. The Commission submitted the Tribunal ought order the practitioner to pay its costs of the proceedings of 4, 5 and 6 November 2002. However, because of the additional legal costs to which the practitioner has been put by the illness of Judge Urquhart QC, it submits there ought be no order as to the costs of these proceedings. The practitioner’s solicitor, Mr Mednis, however, submitted that the appropriate costs order ought be that his client pay the costs of these proceedings, but that as to the proceedings on 4, 5 and 6 November 2002, there ought be no order.

66. It is the Tribunal’s view that although the costs before the differently constituted Tribunal were incurred in proceedings which, ultimately, could not proceed, through illness of a Tribunal member, those proceedings were not wasted. Judge Urquhart QC’s illness had the practical effect that an additional 2 day hearing with some supplementary written submissions became necessary. The Tribunal considers that the practitioner ought pay the costs of the proceedings before the Tribunal on 4, 5 and 6 November 2002, but that we ought make no order as to the costs of the proceedings before us. We have considered the Suitors Fund Act but are of the view we have no jurisdiction to make any order under it. The practitioner’s recourse, if any, under that Act, would appear to be an application to the Director-General of the Attorney-General’s Department.

Findings and orders

1. The Tribunal finds particulars 1,2,3,4 and 5 are proved.

2. The Tribunal finds that the practitioner’s particularised conduct proved amounted to professional misconduct.

3. The Tribunal reprimands Dr Hamad.

4. The Tribunal orders pursuant to s 61(1)(d) of the Act that Dr Hamad at his own cost successfully complete a course operated by the Pharmaceutical Services Branch of the NSW Department of Health entitled “The Assessment for Competency of Schedule 8 Prescribing”, within 6 months of the making of these orders.

5. Dr Hamad is to advise the Medical Board of his successful completion of the said course within 2 months of completion.

6. Pursuant to s 61 (1)(c) of the Act Dr Hamad’s registration is subject to the following conditions:

(a) Within 6 months of the date when, pursuant to 5 above, Dr Hamad advises the Medical Board he has successfully completed the said course, he shall submit to an audit conducted by the Medical Board. The Tribunal recommends that the audit have particular reference to Dr Hamad’s prescribing, administering and recording, of drugs of addiction.
(b) The Tribunal recommends that those conducting the audit include an officer of the Pharmaceutical Services Branch of the NSW Department of Health.
(c) The Medical Board may relieve Dr Hamad from compliance with such parts of these conditions as it considers appropriate.

7. Dr Hamad is to pay the Commission’s costs of 4, 5 and 6 November 2002. Otherwise the Tribunal makes no order as to costs.

(Sgd) Judge S L Walmsley SC (Sgd) Dr D Child

(Sgd) Dr J Kendrick (Sgd) Ms A Collier