DON NAI HSI HUANG v WALTON [1993] NSWCA 139

DON NAI HSI HUANG v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P (1), PRIESTLEY (2), AND MEAGHER (3) JJ 30 November, 1 December 1992, 20 April 1993

[1993] NSWCA 139

MEDICAL PRACTITIONERS — professional misconduct — Medical Practitioners Act 1938 — treatment of alcohol and drug dependent persons — prescription of benzodiazepine sedatives — whether alternative, unorthodox but legitimate mode of medical practice for harm reduction or minimisation in the case of such persons — whether simply a failure to practise medicine; to treat patients individually; and motivated by greed

MEDICAL PRACTITIONERS — professional misconduct — unorthodox but legitimate mode of practice — harm minimisation or reduction — treatment of alcohol and drug addicted persons with benzodiazepines — whether permitted in law — whether conduct of practitioner amounted to

Held: (by the Court):

(1) The Court of Appeal may only allow an appeal and substitute its orders for those of the Medical Tribunal if error is shown which authorises disturbance of the discretionary orders of the Tribunal.

Childs v Walton, Court of Appeal, unreported, 13 November 1990; (1990) NSWJB 159 applied;

(2) Insofar as the Tribunal's findings and orders rested upon the impressions of the medical practitioner, his patients and witnesses, the Court of Appeal should defer to the findings and orders of the Tribunal; (by Priestley and Meagher JJA; Kirby P dissenting):

(3) Upon the findings of fact proved and admitted, removal from the Register was not shown to involve error and was in fact correct.

Spicer v New South Wales Medical Board and Ors, Court of Appeal, unreported, 19 February 1981 referred to; (

4) Appeal dismissed. Orders of Tribunal confirmed.

Held

(1) An unorthodox mode of treatment pursued in good faith with honest therapeutic motives does not amount to professional misconduct.