Health Care Complaints Commission v Pham [1999] NSWCA 39

New South Wales Court of Appeal CITATION : Health Care Complaints Commission v Pham [1999] NSWCA 39 FILE NUMBER(S) : CA 40680/98 HEARING DATE(S) : 18/02/99 JUDGMENT DATE : 4 March 1999

PARTIES : Health Care Complaints Commission v Dr Ngo Chau Pham JUDGMENT OF : Meagher JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : Medical Tribunal of NSW LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Kirkham DCJ

COUNSEL : M J Joseph SC (Appellant) M I Bozic/E H Pike (Respondent) SOLICITORS : D M Swain (Appellant) Tress Cocks & Maddox (Respondent) CATCHWORDS : Professional misconduct and unsatisfactory professional conduct by medical practitioner; reckless, unethical and improper prescription of drugs of addiction; Medical Tribunal's orders so unreasonable as to demonstrate appealable error; removal from register of medical practitioners appropriate; Medical Practitioners Act 1992 ss36, 37 and 64(1). DECISION : Appeal allowed - orders made

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40680/98

MEAGHER JA BEAZLEY JA FITZGERALD JA

Thursday, 4 March 1999

HEALTH CARE COMPLAINTS COMMISSION v Dr Ngo Chau PHAM

JUDGMENT

1 MEAGHER JA: I agree with Fitzgerald JA. 2 BEAZLEY JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: The respondent, Dr Pham, is a medical practitioner who, by order of the Medical Tribunal of New South Wales dated 21 August 1998, was suspended from practising medicine until the commencement of the first term of public hospital employment in New South Wales in January this year. The Tribunal also ordered that Dr Pham "seek and undergo psychiatric and/or counselling with a psychiatrist of his choice, such treatment to commence within two months of [the Tribunal's] order" and "that any application by Dr Pham to the Pharmaceutical Services Branch of the New South Wales Department of Health for the variation and/or lifting of the restrictions in his rights in relation to Schedule 8 drugs be made only in consultation with the Medical Board …". Additionally, the following conditions were imposed on Dr Pham's registration as a medical practitioner: "(a) that within seven days of commencing practice, he notify the Board in writing of the name of his nominated treating psychiatrist; (b) that he authorise his psychiatrist to notify the Medical Board immediately, if the psychiatrist finds a significant deterioration in his mental state sufficient to affect his capacity to practise medicine; (c) that he work as an employed practitioner in a public hospital for a period of at least two years under a supervisor approved in writing by the Medical Board; (d) that he authorise the supervisor to report to the Board on his progress on a monthly basis for the first three months, and thereafter on a quarterly basis, for the period of his supervision; (e) that he complete such educational courses or activities as may be specified and directed by the Medical Board from time to time to address his deficiencies in knowledge, judgement and care in the practice of medicine as set out in the particulars of this complaint and in the Tribunal's reasons for decision." 4 The Health Care Complaints Commission has appealed to this Court, seeking in lieu of the orders made by the Medical Tribunal orders that Dr Pham's name be removed from the register of medical practitioners pursuant to subs64(1) of the Medical Practice Act 1992, and that he be ordered to pay the Commission's costs before the Medical Tribunal and of this appeal. 5 The Commission commenced the proceeding in the Tribunal against Dr Pham pursuant to subs51(1) of the Medical Practice Act, claiming that Dr Pham had been guilty of professional misconduct and unsatisfactory professional conduct within the meaning of ss36 and 37 of that Act in that, in relation to the treatment of 28 of his patients, he "…engaged in conduct which demonstrates a lack of adequate knowledge, judgement and care in the practice of medicine and … in conduct relating to the practice of medicine that is improper and unethical". The particulars of the complaint, including the Schedule there referred to, are annexed to these reasons. 6 Dr Pham represented himself before the Tribunal and admitted the allegations made by the Commission. It is not now in dispute that Dr Pham was guilty of professional misconduct as found by the Tribunal. 7 The Tribunal accepted the evidence of an expert witness called by the Commission, Dr Seidler, a general practitioner with a special interest in medicine related to addiction to drugs and alcohol. The material part of the Tribunal's decision concerning Dr Seidler's evidence was as follows: "Dr Seidler was of the view that the conduct of Dr Pham, … was a departure from the recognised standard within the medical profession in relation to the proper exercise of responsible medical judgement; and/or his conduct demonstrated a lack of adequate knowledge, judgement or care in the practice of Medicine; and/or that this conduct was improper and unethical so as to attract the strong disapproval not only of himself but of his professional peers of good repute and standing. In respect of Patients A, B and C · The prescribing of Pethidine and codeine phosphate for continuous periods in excess of two months. · The failure to notify the NSW Department of Health or to make an application to continue to prescribe Schedule 8 drugs of addiction in excess of two months. In respect of Patient A · The prescription of Pethidine tablets between December 1994 and July 1996 for severe recurrent abdominal pain due to abdominal adhesions; · The prescription of Pethidine tablets in large amounts together with benzodiazepines for this condition; · The prescription of 100 Pethidine tablets together with 100 Serepax 30mg tablets on 30th December 1994. Comment It was Dr Seidler's view that the prescription of 100 Pethidine 50mg tablets together with 100 Serepax 30 mg tablets on 30th December 1994 was a gross over prescription of two drugs which when combined could produce intoxication and overdose symptoms. The clear evidence from this conduct is that that the patient was dependent upon Serepax. It was thus inappropriate to treat chromic severe abdominal pain due to abdominal adhesions with Pethidine, Serepax and codeine phosphate tablets.