The Medical Practice Act 1992 re Dr Lam
[2005] NSWMT 19
•7 July 2006
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) LamFILE 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 1966CASES 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 19.2.1981DATES 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 OutzenORDERS: 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:
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 treatment of 24 patients in accordance with the requirements of the Medical Practice Regulation 1998.
(5) The practitioner failed to include adequate directions for use on prescriptions for restricted substances issued to 23 patients contrary to Clause 37(1)(d) of the Poisons and Therapeutic Goods Regulation 1994.
(6) The practitioner prescribed injectable morphine in 30 mg ampoules to one patient contrary to s 28 of the Poisons andTherapeutic Goods Act 1966 .
4 Schedules attached to the Complaint set out dates of prescriptions and identified the drugs and quantities prescribed in respect of each patient.
5 A further schedule detailed the claimed inadequacies in the directions for use included in the prescriptions issued by the practitioner.
6 In the course of the hearing a further complaint was placed before the Tribunal for its consideration in the following terms:
At the Complainant's request and pursuant to clause 5 of Schedule 2 to the Medical Practice Act 1992, the Tribunal will consider, in addition to the complaints set out in Exhibit A, a complaint to the effect that the practitioner failed to keep a drug register during the period of treatment of Patient M, contrary to the provisions of the Poisons and Therapeutic Goods Regulation 1994.[2]
Unsatisfactory Professional Conduct
7 At the time of the conduct complained of s 36(1)(a) of the Act provided:
Meaning of 'unsatisfactory professional conduct’'
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Lack of skill etc
Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.
Professional Misconduct
8 S 37 of the Act defines professional misconduct as:
"....unsatisfactory 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."
O nus and Standard of Proof
9 After reference to Rejfek v McElroy [3] the Court of Appeal accepted in Bannister v Walton [4] that the standard of proof requires that the Tribunal be 'comfortably satisfied on the balance of probabilities' . The Commissioner bears the onus of satisfying the Tribunal that the Complaint has been proved to this standard.
10 The Tribunal must have regard to the gravity and importance of the matters which it is deciding in accordance with the principles stated in Briginshaw v Briginshaw [5]. At pages 361 and 362 Sir Owen Dixon stated:
Except upon criminal issues to be proved by the Prosecution it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature or consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be proved by inexact proofs, indefinite testimony, or indirect inferences."
BACKGROUND
11 The practitioner tendered a curriculum vitae[6] which indicated:
(1) The practitioner graduated in medicine from the University of New South Wales in 1985. In 1987 he moved to Hong Kong where he worked for a period in paediatrics and emergency and trauma in various hospitals.
(2) In 1991 he returned to Sydney, working at Westmead and Camperdown Children's Hospitals.
(3) In 1993 he established practice as a general practitioner. He continues that practice at Glenmore Park.
12 The Evidentiary Certificate[7] indicated that the practitioner remains registered as a medical practitioner in New South Wales on an unconditional basis.
13 The practitioner is a member of the Royal College of Physicians, although this qualification was not noted in the curriculum vitae. He denied that admission to the College required that he demonstrate advanced learning in a number of areas of medicine, stating that he had been examined in the topic of general paediatrics.
14 The practitioner stated that his practice is located in an area of growth where there are many families with young children. This meets his particular interest in paediatric medicine. He said that the patients which are the subject of the Complaint represented one percent of his practice.
15 The practitioner stated that he is married and has a daughter, born very recently. He and his family live in rented accommodation located close to his surgery. The premises in which his surgery is located are owned by the practitioner but are subject to a mortgage in excess of $1,000,000.
16 He informed the Tribunal that he is having difficulty financially, partly because of high mortgage repayments.
17 The practitioner suffers from a renal condition for which he receives treatment.
THE PROCEEDINGS BEFORE THE TRIBUNAL
18 At the outset of the Tribunal hearing the practitioner admitted all of the particulars of the initial Complaint. He did not admit the Complaint concerning the drug register. The Tribunal therefore proceeded to consider the nature of the conduct in respect of which the admissions had been made for the purpose of determining the appropriate penalty, if any, to be imposed.
19 The issues involved in this inquiry were:
(1) the practitioner's explanations for the conduct complained of;
(2) the credibility of those explanations;
(3) the particular circumstances of certain patients;
(4) the complaint concerning the drug register;
(5) the adequacy of the practitioner's records and the adequacy of directions for use of prescriptions which he issued.
THE PRACTITIONER'S EXPLANATIONS
20 The practitioner's responses to the particulars of the initial Complaint were contained in letters[8] written on his behalf by his solicitors to the Complainant and a statement[9] of the practitioner dated 23 February 2006. In addition, the practitioner gave evidence before the Tribunal.
21 These responses left the firm impression that, in nearly all cases where anabolic steroids or growth hormones had been prescribed, the condition which they were intended to address was erectile dysfunction.
22 Further, the letter from the practitioner's solicitors of 29 May 2003 stated that he had discontinued issuing prescriptions for these substances for various reasons including:
(1) patients had failed to comply with his request that blood tests be undertaken;
(2) patients had improved and no longer required these drugs, or they had failed to improve;
(3) patients were increasing their use of these drugs;
(4) in one case, because a blood test disclosed an abnormal liver function.
23 It was noted that the schedules of the prescriptions issued to the patients under consideration indicated that although the starting date for prescriptions varied, they all ceased in March or April or at the latest May 2002, with the exception of one case where the drugs were prescribed at the direction of an endocrinologist.
24 The practitioner was contacted by the Pharmaceutical Services Branch in May 2002 and informed that it had been conducting an investigation into his prescribing of steroids. The material[10] provided by the Pharmaceutical Services Branch indicated that this investigation commenced in February 2002.
25 The practitioner, in his evidence to the Tribunal, stated that he had been inexperienced in the treatment of erectile dysfunction and the use of steroids. He said he had consulted two texts before issuing prescriptions, MIMS Australia and Goodmans and Gilman's Therapeutics .
26 The evidence indicated that many patients asked by name for the steroids which the practitioner prescribed. He agreed that these patients knew what drugs they wanted because they had used them before consulting him.
27 The practitioner's clinical notes made reference in many cases to patients who were body builders or were engaged in some other form of fitness training. Although the practitioner stated that all of his patients were amateurs, there was reference in some of the clinical notes to preparation for competition.
28 There was also evidence that some of the patients wished to improve their appearance and to feel good.
29 The practitioner stated that he held the belief at the time the prescriptions were issued that he was entitled to prescribe steroids to assist his patients in this way. He said the patients were otherwise obtaining steroids on the black market, some of which were obtained from veterinarians. He said he wished to move them away from these black market drugs.
THE CREDIBILITY OF THE PRACTITIONER'S EXPLANATIONS
Reference to medical texts
(1) Evidence before the Tribunal included extracts from MIMS Australia [11] in relation to the drugs: Proviron, Halotestin, Deca-Durabolin, Primoteston Depot, Profasi, Sustanon, Oroxine, Cytadren, Lonovar, Arimidex, Nolvadex, Nolvadex D, Provera. All of these drugs had been prescribed by the practitioner.
(2) The practitioner agreed in cross examination that:
(a) none of these extracts supported the prescription of the drugs referred to for the purposes claimed by him;
(b) many of them were designed for the treatment of female conditions and none were prescribed for female patients;
(c) Deca-Durabolin was appropriate for the treatment of renal failure and other renal conditions;
(d) Deca-Durabolin had been prescribed for nearly all of the patients who were the subject of the Complaint and there was no support in MIMS Australia for those prescriptions;
(e) the remaining substances were testosterone based and were for use in confirmed cases of testosterone deficiency in males and that, except in the case of one patient, testosterone deficiencies had not been confirmed in any of the remaining 22 patients.
(3) It was put to the practitioner that if he had, in fact, accessed MIMS Australia , he would have been informed that it was inappropriate to prescribe the listed drugs. He agreed with this proposition, but nevertheless, stated that he had consulted MIMS Australia .
Pharmaceutical Services Branch Guidelines [12]
(1) The letter from the practitioner's solicitors of 29 May 2003 stated[13] that the practitioner had consulted the general guidelines prepared by the Pharmaceutical Services Branch in which there was a general debate concerning the black market use of steroids.
(2) Those guidelines were in evidence[14] and were identified by the practitioner as those to which he had referred. However, he then stated[15] that he had received these guidelines only after the Complaint had been served on him and that it was no longer his evidence that he had read them before issuing prescriptions for steroids. He subsequently agreed[16] that he had read the guidelines before issuing prescriptions for steroids.
(3) The following extracts from the guidelines were brought to the practitioner's attention:
The use of anabolic-androgenic steroids (AAS) by men and women to enhance sporting performance or physical appearance is an emerging problem of drug abuse. While these drugs have had the potential for misuse in sport by competitive athletes for several years, there is evidence that a problem has arisen from the use of these drugs for recreational or cosmetic purposes. Some of the groups who use the drugs to improve their physique and self image are body builders, users of gymnasia and adolescents, 'bouncers' and security guards.[17]
...
...it is not acceptable for medical practitioners to prescribe AAS for performance enhancement nor for enhancement of physical appearance.[18]
...
...it was concluded that it is unacceptable for medical practitioners to prescribe such drugs for non-medical indications. This is because long-term effects are unknown and a 'safe' or 'effective' prescribed dose has not been established for non-medical indications.[19]
...
Patients may request medical practitioners to prescribe other medications, for example, tamoxifen, ...[20]
Clearly the most effective method of minimising harm is not to prescribe AAS and to counsel patients to cease AAS use.[21]
(4) In respect of these extracts the practitioner agreed:
(a) having read these guidelines, he had prescribed steroids with the knowledge that it was not acceptable;
(b) the steroids prescribed had the potential to damage the health of the patients involved;
(c) he issued prescriptions for steroids notwithstanding that he was aware that the long terms effects of them were unknown and there was no safe or effective prescribed dose;
(d) he had prescribed drugs such as Tamoxifen to a number of patients to treat side effects without referring those patients to an endocrinologist, as recommended by the guidelines;
(e) he knew prior to prescription that harm could be minimised by not prescribing and counselling patients against the use of steroids;
(f) it was nonsense [22] to suggest that he was trying to help the patients when he knew the only way to minimise harm was not to prescribe.
Diagnosis and Management of Erectile Dysfunction [23]
30 The practitioner stated that he had reference to this document prior to prescribing steroids. He agreed that there was nothing in this document to provide clinical justification for the prescription of steroids to the 23 patients referred to in the Complaint.
Erectile Dysfunction, Modern Medicine of Australia [24]
31 The practitioner stated that he had reference to this document prior to prescribing steroids. It was pointed out to the practitioner that the only reference in that document to testosterone was:
Testosterone has not been shown to be of any benefit in erectile dysfunction other than to treat hypogonadism.
32 The practitioner agreed that, with exception of one patient, the document did not support but indicated to the contrary of the prescription of steroids in respect of the remaining 22 patients.
Conclusion
33 This part of the cross examination of the practitioner concluded with the following:
- Q. Accordingly, is it the case, doctor, that you deliberately and intentionally prescribed anabolic steroids to these patients in circumstances where you knew that they were not clinically justified?
- A. Yes.
Erectile Dysfunction
34 In his statement[25] the practitioner claimed that patients A to L and N to Z all stated that they suffered from sexual dysfunction and that he treated them in good faith on the basis of the histories given.
35 There was evidence that indicated that steroids were not in fact prescribed by the practitioner for the purpose of treatment of erectile dysfunction.
36 He accepted[26] in cross examination that many patients were seen over short periods solely for the purpose of prescribing steroids in connection with body building. He accepted that he had prescribed to patients A, C, D, F, H, I, J, K, L, O, R, U, V and Y for body building purposes and not in relation to erectile dysfunction.
37 The practitioner agreed that this part of his statement had been false.
38 He also agreed that, in respect of the patients who he claimed had complained of erectile dysfunction, he undertook no adequate testing or no testing to determine if in fact they suffered from this condition.
39 Dr Solomon Posen, endocrinologist, provided a peer review at the request of the Complainant. His report[27] noted that most of the prescriptions were issued within the relatively short period between November 2001 and April 2002 and he commented:
A rational doctor would have recognized that an "epidemic" of impotence was a most unlikely explanation for the sudden appearance of some 20 men "requiring" androgen therapy.
40 In his evidence to the Tribunal Dr Posen stated that the drugs prescribed by the practitioner fell into three categories:
(1) Male Hormones
Dr Posen said that erectile dysfunction could be the result of a deficiency of male hormones and that the use of steroids to treat the 5% to 10% of patients who were in this category was reasonable. However, a diagnosis of this condition could not safely be made without a blood test.
The side effects of steroids used to treat this condition included cardiac and vascular disorders, abnormal liver function and psychological effects. Although these side effects were relatively rare, Dr Posen said young men using steroids should be blood tested from time to time to check liver function and hormone levels.
Dr Posen said it was not clinically acceptable to prescribe these steroids to treat a lack of energy.
(2) Anabolic Steroids
Dr Posen said these steroids were intended for the treatment of patients with wasting or terminal diseases such as cancer and AIDS. He said they were definitely not appropriate for the treatment of erectile dysfunction and that, in fact, they could make the condition worse.
He described liver function as a side effect of these steroids. For this reason, greater frequency of blood testing was required and the steroid was required to be prescribed sparingly.
(3) Drugs to deal with the side effects of the steroids
Dr Posen said that anabolic steroids increase production of oestrogen which can lead to side effects such as breast enlargement.
He said it was inappropriate to prescribe drugs to deal with side effects. The more appropriate approach, he said, was to cease the prescription of steroids.
In addition he said that the drug Profasi was intended as treatment to increase production of sperm and that it was not appropriate to prescribe it for erectile dysfunction.
41 Dr Posen was of the opinion that the prescription of Deca-Durabolin and Sustanon in combination was inappropriate. He described this practice as polypharmacy, that is, the use of two drugs on the basis that two would be better than one without scientific evidence to support it.
42 Dr Posen gave evidence that male hormones and anabolic steroids improve muscle strength and bulk and the appearance of muscles.
Aspects of the Practitioner's Evidence
43 In his statement[28] the practitioner said that:
(1) He had not commenced treatment of patients with steroids immediately. In cross examination he agreed that most patients were prescribed steroids immediately.
(2) He discussed alternatives with his patients, such as consultation with endocrinologists, sex clinic or psychologists. No record of these discussions appeared in his clinical notes.
(3) Without experience in this field of medicine, he believed that the prescription of steroids would rectify erectile dysfunction. In this respect, he agreed that the literature to which he said he had made reference, except in one case, did not support the prescription of steroids. He agreed that he had not obtained blood tests to determine if prescription of steroids was appropriate.
44 The practitioner further stated[29] that:
(1) In each case treatment was commenced on a trial basis. This was not recorded in his clinical notes.
(2) Each patient's progress was monitored as was their use of steroids through bloods tests. The practitioner agreed that not all patients had been tested. He said he intended to test them all but not every patient would agree to undergo blood tests.
He agreed that this part of his statement was false, initially attributing the blame for this to his lawyer who had prepared the document. Acknowledging that he had provided the information on which the document was based, the practitioner then stated that the inaccuracy had been the result of his misunderstanding of the English language.
(3) He ceased prescribing when he was of the opinion the steroids were of no assistance and he suggested alternatives to his patients.
The practitioner agreed that, in relation to those patients who were body builders, he had prescribed combinations of drugs in quantities they requested on the basis that they informed him that this was common usage. He agreed that he had not been expert in the area of steroid use in connection with body building and that he had relied on his patients to know what they were doing because, in general, they had used steroids before.
He agreed therefore that in respect of the body building patients he had not been in a position to form an opinion that the treatment was of no assistance.
Further, it was pointed out to the practitioner that the last prescriptions were given to all but one of the patients in April 2002. Most of the patients consulted him monthly and on this basis had received prescriptions in April 2002. On 6 May 2002 the practitioner was informed of the investigation of the Pharmaceutical Services Branch.
The practitioner agreed that, with one exception, the true reason that prescriptions ceased in about April 2002 was the intervention of the Pharmaceutical Services Branch.
45 The practitioner was taken to his original clinical notes[30] and questioned about the use of different pens, some of a different colour, to write into those notes the words erectile dysfunction . He denied that those words had been inserted after the investigation by the Pharmaceutical Services Branch had commenced to mask the true purpose for the issue of prescriptions of steroids. He said that he kept a number of pens on his desk and used them intermittently.
46 The practitioner was questioned by Tribunal members concerning his practice of allowing his patients to self administer steroids. He said that all of the patients had previous experience of self administration and he had checked the way in which they injected the steroids. He said they demonstrated to him that they could inject into their arms, buttocks and other safe areas. He said he also checked how they were to obtain syringes and needles and how they proposed to dispose of them.
47 This practice, he said, applied to all of his patients for whom steroids were prescribed, even those treated for erectile dysfunction.
48 He recognised the possibility that the patients might not have used the steroids themselves and that they might have sold them.
49 In relation to his obligation to maintain his skills, the practitioner stated that he subscribed to no medical journals, although he received weekly free of charge the Australian Doctors' Weekly. He stated that he had increased his level of continuing medical education, particularly in 2004. However, he had not engaged in any education concerning the use of steroids or injectable Morphine notwithstanding that he had become aware of his serious shortcomings in these areas.
PARTICULAR PATIENTS
50 The prescription schedules attached to the Complaint indicated a general pattern of prescribing of two steroids in particular, Deca-Durabolin and Sustanon, at regular and, at times, frequent intervals.
51 It is not proposed in these reasons to refer all 23 patients individually. Some general examples are given and the treatment of some patients warranted particular attention.
52 Patient B first consulted the practitioner on 2 February 2002. The clinical notes[31] for that date recorded erectile impotence and competing in body building club . Prescriptions for Deca-Durabolin and Sustanon were issued and blood was collected.
53 Patient B was seen again on 19 February 2002 when further prescriptions for these steroids were issued in the same quantities. The clinical notes recorded that urine and blood tests were normal. However, the pathologist's report[32], dated 9 February 2002, of the blood test indicated low testosterone.
54 This abnormal result was noted in the clinical record for 6 March 2002 when further prescriptions for the same steroids were issued. The erectile impotence was recorded on 16 April 2002 as improving. Notwithstanding this record, two further prescriptions for each of Deca-Durabolin and Sustanon were issued to Patient B on this date.
55 Patient D was first prescribed Deca-Durabolin and Sustanon on 22 January 2002. The clinical record[33] for that date noted that he was a body builder who had been exercising for four months. The practitioner agreed that there was nothing in this clinical record to indicate that the steroids had been prescribed for a purpose other than to assist the patient's body building pursuits.
56 On 11 February 2002 further prescriptions for these steroids were issued. The practitioner again agreed that only the reference to body building indicated the purpose for the prescriptions and that there was nothing in the clinical notes to indicate that both steroids were required.
57 The last of these prescriptions was issued on 13 March 2002 notwithstanding that the clinical record for that date made reference to erectile dysfunction. The practitioner stated that he had issued no further prescriptions because the patient had been increasing his use of the steroids. This statement was inconsistent with the record that indicated that the prescriptions issued on 13 March 2002 were for an increased dose.
58 A pathology report[34] indicated that blood taken from Patient D on 14 March 2002, after six prescriptions had been issued to him, returned normal levels of testosterone but significantly abnormal liver function results.
59 There was no clinical record which indicated that the practitioner had informed Patient D of this test result. The practitioner stated variously that he probably would have told Patient D to repeat the test, that he had not seen him after the test results were received and that he declined to issue further prescriptions because of his increasing use of steroids. None of this was recorded.
60 Dr Posen noted that Patient D had been provided with six prescriptions between 22 January 2002 and 13 March 2002, three each of Deca-Durabolin and Sustanon. He noted that blood was collected on 14 March 2002 and that the pathology report of 20 March 2002 indicated that testosterone levels were normal.
61 Dr Posen said that it would have been appropriate to check testosterone levels occasionally to confirm the adequacy of the dose provided. However, in Patient D's case, the test would be meaningless because of the properties of Deca-Durabolin which suppressed testosterone levels.
62 Dr Posen stated that the pathology report indicated that bilirubin levels were significantly outside the normal range and a second blood test should have been undertaken. This result, he said, should have rung alarm bells because it indicated abnormality of the liver.
63 Patient G first consulted the practitioner on 11 February 2002. On that date he was prescribed Deca-Durabolin and Sustanon. The clinical record[35] for that date indicated that he complained of erectile dysfunction and that he had been weight training for two years. Blood collected on 12 February 2002 returned[36] normal levels of testosterone and a slightly raised AST level. Notwithstanding these results further prescriptions of steroids were issued to Patient G on 1, 14 and 28 March 2002 and 12 April 2002. On 28 March 2002 a prescription for Primoteston Depot was also issued.
64 The practitioner agreed that the blood test results indicated that there was no deficiency in testosterone levels but stated that he had mistakenly believed that the steroids he prescribed would treat erectile dysfunction. He said that MIMS Australia indicated that the steroids increased energy and he misunderstood this as meaning that they could be used to treat sexual dysfunctions. The practitioner rejected the proposition that he was incapable of understanding MIMS Australia , insisting that he had not understood it correctly.
65 Patient I , a boxer, was issued with prescriptions for Proviron, Profasi, Promoteston Depot and Deca-Durabolin between July 2001 and March 2002. The clinical records[37] indicated that this patient was also consulting a doctor at Epping. The practitioner agreed that he had not contacted this doctor and that he had not initially undertaken any blood tests, relying on the information provided by Patient I. Reference was made in the clinical record to breast enlargement.
66 Blood was collected on 20 December 2001 which, when tested, returned elevated ALT and AST levels. The practitioner said he discussed these results with Patient I in January 2002. However, he continued to issue him with prescriptions for steroids until March 2002.
67 According to Dr Posen the prescription of Deca-Durabolin should have ceased at that point and the blood test repeated.
68 Patient K was first prescribed steroids on 7 September 2001. The first clinical note[38] in respect of his treatment is dated 8 October 1999 and recorded that Patient K was a body builder engaged in gymnasium training.
69 Reference to erectile impotence appeared in the clinical note of 7 September 2001. A pathology report[39] is dated 20 November 2001, that is, after steroids had been prescribed to Patient K on two occasions. The pathology report dealt with Hepatitis Serology, General Chemistry and Haemotology . There was no reference in this report to testosterone levels. The pathology report was significant because it reported abnormally high levels of ALP, AST, ALT and GGT. A clinical note of 26 November 2001 recorded that the blood tests were normal.
70 Questioned concerning this record, the practitioner initially stated that he had informed Patient K that Sustanon should be stopped straight away. However, he agreed that he had prescribed this steroid to Patient K on a number of occasions after this consultation. The practitioner then stated that he had probably discussed the blood test results with Patient K and that his clinical notes were wrong. He denied that he had not understood that the results were abnormal.
71 The practitioner acknowledged that he had been aware that Patient K was a heavy drinker and said that he had advised him to reduce his consumption of alcohol.
72 Dr Posen noted that the pathology report indicated that the AST result was three times greater than that regarded as normal and stated that this was significant.
73 Dr Posen was critical of the combination of drugs prescribed for Patient K, who on 8 March 2002 was prescribed Promoteston Depot and Sustanon, on 28 March 2002, Anapolon, Nolvadex and Proviron and on 24 April 2002 Sustanon, Promoteston Depot, Profasi and Proviron. He said the combination of Sustanon and Primoteston was not generally recommended because they duplicated each other. Proviron, he said, was also a testosterone type drug so that Patient K was receiving three kinds of male hormone. Profasi, he presumed, was prescribed to stimulate spermatogenesis which was suppressed by the other drugs.
74 Dr Posen did not consider that there was any clinical justification for prescribing this combination of drugs.
75 Patient V first consulted the practitioner in July 2000. On 23 August 2001 he was prescribed Thyroxine. The practitioner's clinical notes[40] did not record the reason for this prescription. The clinical notes did record: His plan is professional body-build. On the same day he was prescribed Halotestin and Proviron.
76 The letter[41] from the solicitors for the practitioner to the Complainant of 29 May 2003 made reference to the prescription of Thyroxine but did not provide a reason. This letter stated that Patient V had previously used steroids and that he had a long history of impotence with depression.
77 In the solicitors' letter[42] of 7 January 2005 it was stated that a blood test in April 2001 had confirmed that his testosterone levels were below normal leading the practitioner to the opinion that he should be treated with steroids. A blood test in October 2001 indicated that the testosterone levels were normal and that his liver function was normal.
78 As to Thyroxine, it was stated that Patient V informed the practitioner that he was being treated by other doctors who informed him that he should take this drug. The prescription issued by the practitioner was intended to be for the continuation of this treatment.
79 In his statement[43] the practitioner repeated this explanation, stating that he had monitored Patient V's progress and that he did not renew the prescription after a subsequent blood test indicated that the thyroid gland was functioning normally.
80 The practitioner agreed that he had not taken a blood test to confirm Patient V's thyroid levels before issuing the prescription. He agreed that there was no prior record in his clinical notes that Patient V had complained of an under-active thyroid. He agreed that there had been no clinically justifiable reason for prescribing Patient V with any substance other than Thyroxine.
81 In cross examination the practitioner said that steroids had been prescribed for erectile dysfunction and that the evidence he had earlier given was wrong.
82 He agreed that there was no record in his clinical notes of a complaint of erectile dysfunction when the prescription of steroids commenced in April 2001. Similarly, it appeared that no blood test had in fact been performed in April 2001 to check testosterone levels. To this extent, the practitioner agreed that his explanation had been incorrect. It was noted that blood test results in September 2001 indicated a marginally low level of testosterone[44]. The pathology report of 19 October 2001 indicated a significantly elevated level of testosterone[45].
83 There was no explanation of why, in the light of this result, steroids were prescribed for Patient V on regular occasions and in substantial quantities until April 2002.
84 The same pathology reported a thyroid function test within the normal range.
85 The practitioner's evidence concerning the circumstances in which he ceased prescription of Thyroxine was confused. It was pointed out to him that a normal result was consistent with the use of the prescribed drug and indicated that it was operating to manage Patient V's under-active thyroid.
86 He initially stated that the normal test result indicated that Patient V had been properly treated and that therefore no further prescriptions of this drug were required. He subsequently stated that Patient V, after the second prescription, had an adequate ongoing supply.
87 Dr Posen gave evidence that Thyroxine did not increase muscle strength and that there was evidence that its effect was to decrease muscle strength. He said he could find no clinical reason in the practitioner's notes for the prescription of Thyroxine. The pathology report of 20 October 2001 indicated normal thyroid levels which was consistent with treatment with the prescribed drug.
Patient M
88 There was evidence that Patient M was seriously ill and that she was suffering from a condition involving serious pain. She was also addicted to Morphine.
89 She had been treated at the Pain Clinic at Westmead Hospital. Correspondence[46] in the practitioner's file indicated that he had been kept informed of the advice she received from the Pain Clinic directed at reducing her dependence on opioids. Dr Lam was informed by letter[47] of 19 September 2001:
She has agreed that Dr Lam will be the only prescriber for her, that she will from today not receive any further Pethidine injections, but if she requires intramuscular opiates these injections will be in the form of Morphine and will be limited to 5 per month.
90 On 4 October 2001 the Pharmaceutical Services Branch of the NSW Health Department issued the practitioner with authority[48] to continue to prescribe for Patient M 30 mg daily of Morphine S04 sustained release oral form. The authority was stated to be valid until 1 July 2002 and to exclude any injectable narcotics.
91 Schedule M[49] indicated that from 4 October 2001 until 4 May 2001 the practitioner issued prescriptions to Patient M for Morphine in injectable and oral form at frequencies and in quantities which far exceeded this authority.
92 Mr Thomson of the Pharmaceutical Services Branch calculated[50] that doses of up to 10 injections per day of Morphine had been prescribed.
93 The practitioner has offered a number of explanations for his prescribing for Patient M in this manner, including:
(1) He had done so with the knowledge of the Pain Clinic at Westmead Hospital[51].
(2) The authority of 4 October 2001 had, in error, understated the dose of oral Morphine and omitted to allow for injectable Morphine at the rate of 5 per month as recommended by Dr Bhar of the Pain Clinic on 19 September 2002[52].
(3) He had constantly informed the specialists treating her of the large doses of Morphine injections taken by Patient M. The practitioner named three treating specialists to whom he said he wrote letters giving clear information of her use of Morphine injections. He said he had received no objection, warnings or disagreement from any of the specialists attending Patient M[53].
(4) He had obtained authority by telephone for the prescription from the PBS (the Pharmaceutical Benefits Section of the Department of Health) for the medication prescribed[54].
(5) The medication was necessary for the appropriate treatment of Patient M[55].
(6) Patient M suffered from migraine headaches, pulmonary embolus and shortness breath, was addicted to Morphine, had previously been on very high doses of Morphine and he feared that she would suffer from symptoms of withdrawal such as seizures and loss of consciousness[56].
(7) Patient M has suffered from nausea and therefore had been unable to tolerate oral doses of Morphine.
94 It was subsequently conceded by the practitioner that the explanations given in (1) and (4) were entirely false. In respect of the explanation provided in (3), the practitioner agreed that, in the period under consideration, he had written only one letter[57] to one doctor which indicated that the Morphine dose was in fact reducing and that thus this explanation was also false.
95 Mr Thomson made contact with the Pain Clinic of Westmead Hospital and was informed by Dr Chapman that she believed that Dr Lam had restricted Morphine injections to not more than five per month.
96 By email[58] dated 3 March 2006 Mr Thomson informed the Complainant:
(1) There was no record or file note to indicate that the practitioner had telephoned the Department of Health for authority each time he issued a prescription for Morphine.
(2) It was not necessary to seek further authority each time a prescription was issued within the terms of an authority issued under s 29 of the Poisons and Therapeutic Goods Act 1966.
(3) Further authority was required if the practitioner wished to increase the dose or to vary the medication to be prescribed.
(4) The number in the box on the prescriptions issued by the practitioner was not a number provided by the Pharmaceutical Services Branch, rather, it was believed to be a number provided by the Health Insurance Commission.
97 The practitioner acknowledged that he had provided prescriptions to Patient M knowing that she would self administer the injections at a time when he also knew that she was addicted to Morphine.
98 The practitioner accepted that this conduct could not be regarded as responsible practice of medicine. He stated, however, that he had given warnings to Patient M about the use of Morphine injections and had discussed the administration of Morphine with Patient M's mother and husband, both of whom lived with her. There was no record of these warnings or discussions in the practitioner's clinical notes.
THE DRUG REGISTER
99 The practitioner stated that he had maintained a drug register in his surgery. He could not recall if he had administered Morphine to Patient M in his surgery but said that if he had done so he would have recorded it in the drug register.
100 There was no record in the clinical notes of the practitioner's having administered Morphine to Patient M.
101 The Complainant conceded in submissions that entry was required in a drug register only when the drug was administered by the practitioner.
ADEQUACY OF CLINICAL RECORDS AND DIRECTIONS FOR USE OF DRUGS
102 The practitioner admitted that his clinical records were inadequate. His explanation was that he operated a very busy practice leaving him little time to produce notes of an acceptable standard.
103 He stated that, since the events leading to the initial Complaint, he had reduced his surgery hours and the numbers of patients seen and had paid greater attention to recording notes to an acceptable standard.
104 Dr Posen stated that the practitioner should have clearly stated in his clinical records the rationale for the unusual treatment schedules he adopted. He gave as an instance Patient V for whom a prescription for two testosterone preparations had been issued concurrently with two anabolic steroid preparations ...without a word of explanation as to why he required this outlandish combination. [59]
105 Inadequacies in the clinical notes identified by Dr Posen were:
1. the absence of explanation for changes in treatment;
2. insufficient information concerning diagnosis and treatment;
3. in the majority of cases, inadequate medical histories, record of physical examination and explanations of why patients required a particular treatment regime; and
4. the absence of records of why treatment was discontinued.
106 Dr Posen agreed that overall he had been able to follow the clinical notes although he had difficulty gleaning from the clinical records what was happening because of the practitioner's handwriting and the absence of explanation.
107 The practitioner also acknowledged that he had not adequately provided directions on the prescriptions for use of the steroids and other drugs which he prescribed. Again, he stated that he had rectified this shortcoming.
PEER REVIEW
108 Dr Posen was of the opinion that the practitioner's conduct fell below that required of a medical practitioner.
109 In respect of nandrolone and testosterone he said:
1. prescriptions had been issued for inappropriate indications;
2. testosterone doses were more than double those recommended;
3. The combination of nandrolone and testosterone was not recommended on any theoretical or practical basis;
4. Nandrolone was not recommended as treatment for impotence and infertility, there being evidence that it lowers sperm counts;
5. Testosterone measurements in nandrolone recipients give meaningless results.
110 Further, Dr Posen stated that the potential toxicity of androgens and androgenic anabolic steroids was acceptable only in patients with particular, serious illnesses. It was not acceptable for normal patients.
111 As to his level of disapproval, Dr Posen stated that the scales of mild, moderate and severe disapproval were arbitrary and he was unable to justify placing the practitioner's inappropriate prescribing habits into any one of these categories.
112 He was, however, disapproving of the practitioner's professional conduct, stating: ...the prescription of androgens and anabolic steroids to body builders is too far away from mainstream medicine to be condoned ... [60].
113 Dr Posen was of the opinion that the general body of medical practitioners would disapprove of the practitioner's conduct.
FINDINGS
114 Having regard to the admissions made by the practitioner the Tribunal formally finds that the particulars of the initial Complaint are proved.
115 The subsequent Complaint concerning the maintenance of a drug register was not proved.
116 The Tribunal finds that the conduct of the practitioner as detailed in the particulars of the initial Complaint demonstrated a lack of adequate knowledge, skill, judgment and care by the practitioner in the practice of medicine and as such amounted to unsatisfactory professional conduct.
117 The remaining issue is whether that conduct was sufficiently serious to warrant a finding of professional misconduct.
118 Judicial guidance in determining this issue may be found in the following passage from the judgment of Justice Kirby when President of the New South Wales Court of Appeal in Pillai v Messiter [61]:
...the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more 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 the privileges which accompany registration as a medical practitioner.
119 Further, in Spicer v New South Wales Medical Board and Ors [62] it was said:
Strict adherence to the statutory requirements relating to the use of drugs of addiction is required by medical practitioners. It is clear beyond argument that the 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 a disregard for the law, it cannot be said he is fit at such time to be a medical practitioner.
120 In measuring the practitioner's conduct against these tests it is noted:
(1) The practitioner ultimately discarded his claim that he had treated all of the patients for whom steroids were prescribed for erectile dysfunction and conceded that in almost all cases the steroids had been prescribed for body building and cosmetic purposes.
(2) The practitioner further conceded that he deliberately and intentionally prescribed steroids to 22 of the patients in circumstances where he knew that they were not clinically justified.
(3) Before making these concessions the practitioner had embarked upon a deliberate course directed at creating the false basis of erectile dysfunction to justify the prescribing of steroids. Having regard to the practitioner's concession that this claim was false, it follows, in the Tribunal's opinion, that the practitioner altered his clinical notes to add references to erectile dysfunction.
(4) The evidence of Dr Posen established that the steroids which were prescribed had potentially serious side effects. This feature was aggravated by the quantities and combinations of steroids prescribed, and, in some cases, the frequency with which the prescriptions were issued.
(5) The practitioner's claim that he prescribed steroids so that his patients would not obtain them by resorting to the black market was not credible. The prescriptions he issued had the capacity to feed such a market in circumstances where:
(a) the drugs were prescribed in significant quantities and at frequent intervals;
(b) the steroids prescribed were in injectable form and the practitioner did not himself administer the injections;
(c) the practitioner allowed the patients themselves to administer the injections, stating that he had checked that they could do so proficiently and safely.
(6) In respect of Patient M, the practitioner admitted that he prescribed injectable and oral Morphine in quantities which exceeded the level of his authority. The quantities prescribed also exceeded those which, to his knowledge, had been set by the Westmead Hospital Pain Clinic. Further aggravating this situation was the fact that the practitioner issued prescriptions for injectable Morphine in significant quantities for self administration to Patient M when he knew that she was addicted to Morphine.
(7) The practitioner falsely claimed that he had obtained authority before issuing these prescriptions to Patient M.
Further, the following matters raised significant issues concerning the level of skill, judgment and care provided by the practitioner:
(1) The demonstrated inadequacies in the level of monitoring of the patients to whom steroids were prescribed through the medium of blood tests.
(2) His apparent failure to appreciate or act upon adverse liver function results in some of the blood tests.
(3) In respect of Patient V, the absence of clinical record to justify the prescription of Thyroxine and the absence of clinical record to justify discontinuing medication when testing established that Thyroxine appeared to be adequately treating an apparent thyroid deficiency.
(4) The exercise of poor judgment in permitting the self administration of steroids and, in the case of Patient M, injectable Morphine.
(5) The absence of care in the maintenance of clinical notes.
(6) The absence of care in the directions provided with the prescriptions issued.
121 Having regard to these factors, the Tribunal is comfortably satisfied that the practitioner's unsatisfactory professional conduct involved conduct that was deliberate and reckless to the point where it was of a sufficiently serious nature to justify a finding of professional misconduct.
PENALTY
122 The Tribunal is charged with exercising powers to sanction members of the medical profession for the purpose of protecting the community. The principal consideration in the exercise of these powers is the maintenance of the standards of the medical profession and maintaining the confidence of the public in the profession. The public is entitled to the assurance that measures will be taken to address breaches of acceptable standards of practice.
123 The practitioner gave evidence that following receipt of the Complaint he had reformed some aspects of his practice by making more comprehensive clinical notes, spending more time with patients and checking more frequently with practitioners who had previously treated his patients. He also said that he no longer treated complaints of erectile dysfunction with steroids. He said that he had prescribed steroids to only one patient since the Complaint had been issued, doing so at the direction of an endocrinologist.
124 The practitioner stated that, while he continued to prescribe oral Morphine, he no longer prescribed Morphine in injectable form.
125 The practitioner stated that if he were permitted to remain on the Register of practitioners he would comply with appropriate conditions relating to his prescribing rights and the monitoring of his practice.
126 On behalf of the practitioner it was submitted that he had done his best in giving his evidence to the Tribunal and had been genuine in the answers that he had given. It was suggested that the Tribunal should make allowance for the fact that the practitioner might not be fluid or fluent in the English language. The suggestion that nuances in the English language might have lead the practitioner to make statements which were misleading is rejected. Parts of the practitioner's evidence were deliberately and demonstrably false.
127 Further it was argued that there was no evidence that any of the patients referred to in the Complaint had suffered harm as a result of the conduct of the practitioner. This submission cannot be accepted. Aside from the evidence that the long term effects of steroids was unknown, Patient M's medical condition of addiction to Morphine was prolonged by the practitioner's conduct.
128 It was suggested on behalf of the practitioner that the Tribunal should impose appropriate conditions on the practitioner's continued right of practice, accompanied by a reprimand and a fine, moderated having regard to his current financial situation and to the expense which would be involved in complying with any condition requiring supervision.
129 The practitioner placed no character evidence before the Tribunal. It was submitted that the Tribunal should draw no adverse inference from the absence of this evidence but that it should take into account the distress and embarrassment caused to the practitioner by the publicity surrounding the Complaint and the Tribunal hearing.
130 Apart from this claim of distress and embarrassment and evidence of concern for his own situation, there was little evidence of remorse or contrition on the part of the practitioner concerning the potential consequences to his patients. There was little evidence of insight on the part of the practitioner into the severity of the potential consequences of his conduct.
131 There was no evidence that the practitioner has sought counselling in respect of the identified shortcomings in his practice of medicine. Courses which he has undertaken since the Complaint was made have not been directed at these matters.
132 The Tribunal having taken these submissions into account has determined that the practitioner is not fit to remain on the Register of medical practitioners.
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.
6. The Tribunal's reasons are published.
Signed by Deputy Chairperson and all Tribunal members
1 Exhibit A
2 Transcript p.193/4
3 (1965) 112 CLR 517
4 (1993) 30 NSWLR 699
5 (1938) 60 CLR 336
6 Exhibit 2
7 Exhibit B
8 Exhibit C, tab 4
9 Exhibit 1
10 Exhibit C, Tab 2
11 Exhibit C, Tab 6
12 Full title: Anabolic Androgenic Steroids: Information for Medical Practitioners, PSB July 1997 (TG 197)
13 Exhibit C, Tab 6, p.31
14 Exhibit C, tab 6, p.91
15 Transcript p.146
16 Transcript p.147
17 Exhibit C, tab 6, p.92
18 Exhibit C, tab 6, p.97
19 Exhibit C, tab 6, p.98
20 Exhibit C, tab 6, p.98
21 Exhibit C, tab 6, p.98
22 Transcript p.148.57
23 Pfizer 1998, Exhibit C, tab 6, p.102
24 September 1997, 89-95, Exhibit C, tab 6, p.132
25 Exhibit 1, pp 5(a)
26 Transcript 154.42 et seq
27 Exhibit C, tab 5
28 Exhibit 1, pp5(a)
29 Exhibit 1,pp 5(b)
30 Exhibits F, G, H, J, K and L
31 Exhibit C, tab 7B, p.152
32 Exhibit C, p.154
33 Exhibit C, tab 7D, p.167
34 Exhibit C, p.173
35 Exhibit C, tab 7G, p.200
36 Exhibit C, p. 205
37 Exhibit C, tab I, p.222
38 Exhibit C, tab K, p.254
39 Exhibit C, p.265-267
40 Exhibit D, tab 7V, p.239
41 Exhibit C, tab 4, p.30
42 Exhibit C, tab 4, p.39
43 Exhibit 1, pp 5(e)
44 Exhibit D, p.245, 7.5 nmol/L
45 Exhibit D, p.244, 39.9 nmol/L
46 Exhibit D, Tab 7M
47 Exhibit D, p.54
48 Exhibit D, p.56
49 Exhibit D, p,2
50 Exhibit C, p.11
51 Exhibit C, p.10
52 Exhibit C, p.33
53 Exhibit 1, pp 5(h)
54 Exhibit C, p.33, p.40, Exhibit 1, pp 5(i)
55 Exhibt C, p.33
56 Transcript p.109
57 Exhibit D, p.58
58 Exhibit E
59 Exhibit C, p.45
60 Exhibit C, p.46
61 (1989) 16 NSWLR 197 at 200
62 NSW Court of Appeal, unreported, 19 February 1981
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