The Medical Practice Act 1992 re Dr Lam - [2005] NSWMT 19

New South Wales

Medical Tribunal

CITATION: The Medical Practice Act 1992 re Dr Lam [2005] NSWMT 19

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission
Dr Chuen (Wallis) Lam

FILE NUMBER(S): 40017 of 2005

CORAM: Sidis, DCJ - Glover, Prof W - Ng, Dr J - Smith, Mr RJ

CATCHWORDS: Prescription of steroids without clinical justification - alteration of clinical records - credit

LEGISLATION CITED: Medical Practice Act 1992 - ss 36 and 37
Medical Practice Regulation 1998
Poisons and Therapeutic Goods Regulation 1994
Poisons and Therapeutic Goods Act 1966

CASES CITED: Richter v Walton NSWCA U/R 15.7.93;
HCCC v Litchfield (1997) 41 NSWLR 630;
Bannister v Walton (1993) 30 NSWLR 699;
Briginshaw v Briginshaw (1938) 60 CLR 336;
Pillai v Messiter (1989) 16 NSWLR 197 @ 200;
Spicer v New South Wales Medical Board and Ors NSWCA U/R 19.2.1981

DATES OF HEARING: 7, 8, 9 March and 11 April 2006

DATE OF JUDGMENT: 7 July 2006

LEGAL REPRESENTATIVES: Counsel G B Furness
Solicitor S Shearman HCCC
Counsel P Nematalla
Solicitor C Outzen

ORDERS: 1 The Tribunal finds Dr Lam guilty of professional misconduct; 2 Dr Lam's name is to be removed from the Register of medical practitioners; 3 No application for review of order 1 is to be made until two years have elapsed from the date upon which order 1 is made; 4 Dr Lam is to pay the costs of the Health Care Complaints Commission, as agreed or assessed; 5 Exhibits may be released

JUDGMENT:

Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of any matter capable of identifying the patients described in these reasons as Patients A to Z inclusive.

NATURE OF COMPLAINT

1 Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal inquired into a Complaint[1] of the Commissioner, Health Care Complaints Commission, concerning the professional conduct of Dr Chuen (Wallis) Lam (the practitioner).

2 The Commissioner complained that the practitioner, being a medical practitioner registered under the Act, had been guilty of professional misconduct or unsatisfactory professional conduct within the meaning of ss 36 and 37 of the Act in that he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine and engaged in improper and unethical conduct relating to the practice of medicine.

3 The Complaint related to 24 patients treated by the practitioner. Particulars of the complaint alleged:

(1) The practitioner prescribed to 23 patients anabolic/androgenic steroids in quantities and for purposes not in accordance with therapeutic standards, contrary to Clause 36 of the Poisons and Therapeutic Goods Regulation 1994.

(2) The practitioner prescribed human growth hormones to 5 patients in quantities and for purposes not in accordance with therapeutic standards, contrary to Clause 36 of the Poisons and Therapeutic Goods Regulation 1994.

(3) The practitioner prescribed Thyroxine to one patient without proper and sufficient clinical indications.

(4) The practitioner failed to make proper records of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWMT 19
Decision Date: 7 July 2006

CaseChat Overview and Summary

The case involved Dr Lam, a registered medical practitioner, and the Health Care Complaints Commission, which brought complaints against him. The Commission alleged that Dr Lam had prescribed steroids without a clinical justification and had altered clinical records. The dispute was heard by the Health Care Complaints Tribunal of New South Wales, which has jurisdiction to hear complaints against medical practitioners and to determine matters of professional conduct and competence. The Commission sought a finding of professional misconduct against Dr Lam, his removal from the Register of medical practitioners, and other penalties.

The primary legal issue before the Tribunal was whether Dr Lam's actions constituted professional misconduct under the Medical Practice Act 1992. The Tribunal had to consider the relevant provisions of the Act, the applicable professional standards, and the evidence presented by both parties. In particular, the Tribunal needed to determine whether Dr Lam's prescription of steroids without clinical justification and alteration of clinical records amounted to professional misconduct. The Tribunal also had to consider the appropriate penalty to impose if Dr Lam was found guilty of professional misconduct.

After considering the evidence and arguments presented by both parties, the Tribunal found that Dr Lam's actions constituted professional misconduct. The Tribunal held that Dr Lam had prescribed steroids without a clinical justification and had altered clinical records, which were serious breaches of professional standards. The Tribunal found that these actions brought the medical profession into disrepute and were inconsistent with the standards of professional conduct expected of a registered medical practitioner. The Tribunal also held that Dr Lam's conduct was dishonest and lacked integrity. As a result, the Tribunal ordered that Dr Lam's name be removed from the Register of medical practitioners and that no application for review of this order be made until two years have elapsed. Dr Lam was also ordered to pay the costs of the Health Care Complaints Commission and to release any relevant exhibits.

The Tribunal's decision highlights the importance of maintaining professional standards in the medical profession. Medical practitioners have a duty to act in the best interests of their patients and to adhere to professional standards. Prescribing medication without a clinical justification and altering clinical records are serious breaches of professional standards that can have serious consequences for patients and the medical profession as a whole. The Tribunal's decision serves as a reminder to all medical practitioners of their professional obligations and the consequences of failing to meet those obligations.

Orders

Orders of the court

1 The Tribunal finds Dr Lam guilty of professional misconduct; 2 Dr Lam's name is to be removed from the Register of medical practitioners; 3 No application for review of order 1 is to be made until two years have elapsed from the date upon which order 1 is made; 4 Dr Lam is to pay the costs of the Health Care Complaints Commission, as agreed or assessed; 5 Exhibits may be released

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	The Medical Practice Act 1992 re Dr Lam [2005] NSWMT 19
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Chuen (Wallis) Lam
FILE NUMBER(S):	40017 of 2005
CORAM:	Sidis, DCJ - Glover, Prof W - Ng, Dr J - Smith, Mr RJ
CATCHWORDS:	Prescription of steroids without clinical justification - alteration of clinical records - credit
LEGISLATION CITED:	Medical Practice Act 1992 - ss 36 and 37 Medical Practice Regulation 1998 Poisons and Therapeutic Goods Regulation 1994 Poisons and Therapeutic Goods Act 1966
CASES CITED:	Richter v Walton NSWCA U/R 15.7.93; HCCC v Litchfield (1997) 41 NSWLR 630; Bannister v Walton (1993) 30 NSWLR 699; Briginshaw v Briginshaw (1938) 60 CLR 336; Pillai v Messiter (1989) 16 NSWLR 197 @ 200; Spicer v New South Wales Medical Board and Ors NSWCA U/R 19.2.1981
DATES OF HEARING:	7, 8, 9 March and 11 April 2006
DATE OF JUDGMENT:	7 July 2006
LEGAL REPRESENTATIVES:	Counsel G B Furness Solicitor S Shearman HCCC Counsel P Nematalla Solicitor C Outzen
ORDERS:	1 The Tribunal finds Dr Lam guilty of professional misconduct; 2 Dr Lam's name is to be removed from the Register of medical practitioners; 3 No application for review of order 1 is to be made until two years have elapsed from the date upon which order 1 is made; 4 Dr Lam is to pay the costs of the Health Care Complaints Commission, as agreed or assessed; 5 Exhibits may be released