New South Wales Medical Tribunal CITATION : HCCC v Gayed [2009] NSWMT 4 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission Mr William Gayed FILE NUMBER(S) : 40007 of 2009 CORAM: Murrell, SC DCJ - Kok, Dr E - Wroth, Dr M - Smith, Mr RJ CATCHWORDS: Breach of registration conditions - Professional misconduct - Appropriate orders. LEGISLATION CITED: Medical Practice Act 1992 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; CASES CITED: Law Society of NSW v Foreman (1994) 34 NSWLR 408; NSW Medical Board v Dinakar (24 June 2009). DATES OF HEARING: 23 November 2009 DATE OF JUDGMENT: 23 November 2009 LEGAL REPRESENTATIVES: Mr I Bourke of Counsel for the Complainant Mr E Pike of Counsel for the Respondent ORDERS: JUDGMENT: The Context 1 Ten years after he was removed from the Register of Medical Practitioners for professional misconduct in relation to the prescription of drugs, the respondent comes before the Medical Tribunal on a similar complaint. 2 The practitioner is 74 years old. He was first registered in 1976. In February 1997, the Tribunal found the practitioner guilty of professional misconduct in that he inappropriately prescribed benzodiazepines and narcotic analgesics during the period 1989 to 1992. In its reasons for decision, the Tribunal stated (Exhibit A.3, tab 1, p 55): "The Tribunal is unable to accept the respondent as a truthful and reliable witness in respect of many issues which arose in the course of the hearing." The respondent was removed from the Register. 3 In 2000, the respondent sought restoration to the Register. The Tribunal had "some misgivings" about whether the respondent had changed, but, in December 2000, the Tribunal decided to restore the respondent to the register. He was re-registered subject to conditions, including supervision and mentoring. The respondent was not to "prescribe, handle, possess or administer any Schedule 4D or Schedule 8 drugs" and was to provide a copy of the registration conditions to all practitioners with whom he was associated in any medical practice. In April 2003, the Tribunal modified the supervision requirement, deleted the mentoring condition, and amended the notification condition to require that the respondent provide a copy of the conditions to his principal or practice manager and any practitioner with whom he was in partnership. In July 2004, the Conduct Committee removed any requirement for supervision. The Schedule 4D/8 drug condition (condition 6) and the notification condition (condition 7) remained. 4 Following a complaint about the prescription of antihypertensive medication, in April 2005 a performance interview was conducted. In March 2006, there was a performance assessment. The assessors recommended counselling and reassessment in six months. In August 2006, the respondent was counselled. He was to be reassessed in six months, but in March 2007 the NSW Medical Board received a further complaint. The complaint concerned patient B. Patient B 5 On 1 July 2003, the respondent began to work at the Mount Druitt Medical Centre. He gave a copy of his registration to the practice manager. That document stated that registration was conditional. The practice manager did not enquire about the conditions. The respondent told the medical director that he was not permitted to prescribe Schedule 4D or Schedule 8 drugs, but he failed to mention that he was not permitted to handle, possess or administer such drugs and he did not provide a copy of the conditions of his registration. In late 2003, the respondent informed his supervisor, Dr Wong, that he had complied with conditions 6 and 7 (Exhibit A.2, tab 10). 6 On 2 January 2005, the respondent first administered pethidine to patient B. Thereafter, he frequently administered pethidine to her. From about September 2006, he administered morphine rather than pethidine. Another practitioner prescribed the pethidine and morphine. 7 On 14 April 2006, Dr H, another practitioner at the Mount Druitt Medical Centre, saw patient B and declined to administer pethidine. The thorough entry recorded by Dr H includes the opinion "would appear to be dependent/addicted" and the advice (Exhibit A.1, tab 3): "I do not think that this patient should receive further pethidine without consultation with the pain management team and confirmation of her clinical needs." 8 On 17 April 2006 when the patient next attended the Centre, she saw the respondent and received an injection of pethidine. Thereafter, she received injections every two or three days and sometimes twice daily. 9 By late June 2006 (the facsimile date on the handwritten letter that Exhibit A.1, tab 10D), the respondent had received a letter from the Sydney Pain Management Clinic stating that patient B had a "pethidine dependency issue" and was "doctor shopping". A related typed document stated that, within three months, pethidine been should be discontinued. 10 Dr H attempted to discuss patient B with the respondent, but the respondent was "unwilling to engage in a discussion" and "(maintained) that as he does not prescribe the narcotics that he administers, it is not his responsibility to provide clinical justification" (Exhibit A.1, tab 3). It was not until January/ February 2007 that Dr H learned that the respondent was subject to conditional registration. The Complaint 11 In these proceedings, the complaint is articulated as follows: (1) Between 2 January 2005 and 6 March 2007 at the Mount Druitt Medical and Dental Centre the respondent handled, possessed and administered Schedule 8 drugs, namely morphine and pethidine, on approximately 292 occasions, in breach of condition 6. (2) Between June 2003 and March 2007 the respondent failed to provide a copy of conditions imposed on his medical registration to the principal or practice manager of a medical practice where he worked as a medical practitioner, namely the Mount Druitt Medical and Dental Centre, in breach of condition 7. 12 In April 2007, the Board conducted a s 66 Inquiry and determined to suspend the respondent. In the course of the Inquiry, the respondent conceded that he had breached condition 6 by administering the Schedule 8 drugs pethidine and morphine intramuscularly to patient B several times a week from 2005 to 6 March 2007, although he had became aware of alleged "doctor shopping" by the patient. He said that it had "slipped his mind" that he was forbidden to administer such drugs. The respondent agreed that he had failed to provide a copy of the conditions of his registration to the medical director, the practice manager or any other practitioner with whom he was working. The respondent maintained that, after receiving the letter from the Sydney Pain Management Clinic, he tried to counsel patient B against the overuse of morphine but she was unreceptive. Coincidentally, on 6 March 2007, a week before the Medical Board received a written complaint, the respondent decided to voluntarily cease administering morphine to patient B. 13 The Board's delegates at the Inquiry stated: "It is inconceivable that (the respondent) was not fully aware of the restrictions imposed on his practice of medicine. The failure to comply with the prescribed conditions since 2003 at least is a serious matter and cannot be ignored. The reason given for the failure is not credible. No further conditions can be applied which could give confidence that the practitioner would comply in order to protect the public. … On the basis of the evidence before the Inquiry and (the respondent's) presentation during the Inquiry , the delegates do not consider that the public would be adequately protected by conditions … " (emphasis added) 14 In July 2007, the respondent answered a letter from the Health Care Complaints Commission by admitting that he had breached condition 6. He said that he had administered pethidine to patient B "when her own doctor was not available during periods when her pain was aggravated". He admitted a breach of condition 7. He said that, as he had been unable to find a copy of the conditions at the time, he had verbally notified his principal and colleagues that there was a restriction on his ability to prescribe drugs. 15 The Health Care Complaints Commission complains that the respondent is guilty of unsatisfactory professional conduct and/or professional misconduct. 16 In September 2009, the practitioner admitted the particulars of the complaint and noted that he had removed his name from the Register. He gave an undertaking that he would not reapply for registration in NSW or elsewhere. The Issues (1) Whether the respondent's conduct amounts to professional misconduct and/or unprofessional conduct. (2) Whether the Tribunal should order that the respondent not be re-registered. If so, whether and for what period there should be no application for review. (3) Costs. The Respondent's Conduct 17 The respondent admitted that he had contravened conditions 6 and 7. The Tribunal is comfortably satisfied that the respondent is guilty of unprofessional conduct in that respect: s 36 (1) (c) of the Medical Practice Act 1992. 18 Further, the Tribunal is comfortably satisfied that, in the circumstances of this case, the unsatisfactory professional conduct amounts to professional misconduct. Whether particular (1) (the repeated administration of Schedule 8 drugs) is considered in isolation or is considered together with particular (2) (the failure to provide a copy of registration conditions), the conduct is sufficiently serious that, if the respondent was still registered, his conduct would justify the removal of his name from the Register: s 37 (a) and (b) of the Act. 19 The respondent's legal representative did not expressly concede that the respondent's conduct should be characterised as professional misconduct, but made no submission to the contrary. 20 The Tribunal considers that the respondent's conduct was a very serious breach of professional standards. 21 First, the repeated administration of Schedule 8 drugs was very serious in an objective sense. Pethidine or morphine was administered on 292 occasions. It was administered over a period of two years and two months. It was administered in direct contravention of the express terms of condition 6. In April/June 2006, Dr H and the Sydney Pain Management Centre advised the respondent that such administration was inappropriate and, inferentially, contrary to the best interests of the patient, but the respondent paid no heed to such advice. 22 The objective seriousness of the repeated administration of Schedule 8 drugs was aggravated because it occurred in the context of condition 7. The primary purpose of condition 7 was to provide a measure of security in relation to the respondent's dealings with dangerous drugs. The respondent's failure to provide a copy of registration conditions to his employer enabled - or, at least, assisted – the continued breach of condition 6. The respondent misled his employer and colleagues by telling them that he could not prescribe certain drugs but failing to tell them that he could have nothing to do with such drugs. In late 2003, he misled Dr Wong by telling Dr Wong that he had complied with condition 7. 23 The Tribunal finds that the respondent deliberately breached conditions 6 and 7. The respondent did not give evidence before the Tribunal. However, his statements that he did not appreciate that condition 6 extended beyond prescription to administration and that he had "only glanced" at condition 7 defy credulity as they come from a professional person who, over a decade, has undergone disciplinary inquiries and performance assessments. This view is reinforced by the observation of the s 66 Inquiry delegates about the respondent's "presentation". In 1997, the Tribunal was, in many respects, unable to accept the respondent as a truthful and reliable witness. In 2000, the Tribunal had "some reservations" about whether his character had changed. 24 As well as providing a context within which to assess the respondent's credibility, the history of disciplinary proceedings provides a context in which the respondent's conduct must be seen as objectively more serious than would have been the case if the respondent had not previously come before the Tribunal on a similar complaint. The Appropriate Orders 25 On behalf of the respondent, it was submitted that the Tribunal should take no action, or should take only nominal action. It was submitted that the respondent is a 74-year-old man with medical problems who has not practised since April 2007. He has removed himself from the Register and has undertaken that he will not seek re-registration in New South Wales or elsewhere. 26 In the circumstance that it is most unlikely that the respondent will seek re-registration, there may be little practical need to protect the public. 27 However, the Tribunal's jurisdiction is to be exercised both for the protection of the public and for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. It is important that serious misconduct be denounced. Both the profession and the public must know that standards will be maintained and that serious misconduct will have consequences for professional registration: Law Society of NSW v Foreman (1994) 34 NSWLR 408 per Giles JA at 471. 28 For these reasons, pursuant to s 64 (2) and (3), the Tribunal orders that the respondent be deregistered (not be re-registered) and that there be no application for review of this order within three years. Costs 29 The Tribunal's power and discretion in relation to costs was reviewed in NSW Medical Board v Dinakar (Medical Tribunal, 24 June 2009). 30 The complaint has been established. The HCCC has obtained the orders that it sought. It is appropriate that the HCCC be compensated for the costs of bringing the proceedings. The Tribunal orders that the respondent pay the complainant's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.