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Level 24, AON Building, 1 Willis Street, Wellington 6011
PO Box 10509, The Terrace, Wellington 6143, New Zealand Telephone: 64 4 381 6816
Website: www.hpdt.org.nz
Level 13, 2-6 Gilmer Terrace, Wellington 6011
PO Box 10509, The Terrace, Wellington 6143, New Zealand Telephone: 64 4 381 6816 Facsimile: 64 4 381 6770
Email: kdavies@hpdt.org.nz Website: www.hpdt.org.nz
HPDT NO: 1046/Med18/431P
UNDER The Health Practitioners Competence
Assurance Act 2003 (“the HPCA Act”)
IN THE MATTER of a disciplinary charge laid against a
health practitioner under Part 4 of the
Act.
BETWEEN A PROFESSIONAL CONDUCT
COMMITTEE appointed by the
MEDICAL COUNCIL
Applicant
AND DR A of X, registered medical
practitioner
Practitioner
HEARING held at Auckland on 30 July 2019
TRIBUNAL: Mr D M Carden (Chair)
Dr B Bond, Dr J Kimber, Dr P Thomson and Ms A Kinzett
(Members)
Ms K Davies (Executive Officer)
APPEARANCES: Mr S Mount QC and Ms Goodhew for the Professional
Conduct Committee
Mr H Waalkens QC and Ms H Stuart for the practitioner
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CONTENTS
Introduction .................................................................................................................. 3
Background .................................................................................................................. 4
The Charge – parties’ position .................................................................................... 5
Particular 6 – misleading pharmacist ........................................................................ 6
The Charge – discussion .............................................................................................. 9
Penalty - the parties’ positions .................................................................................. 14
Penalty – discussion ................................................................................................... 17
Censure ............................................................................................................... 22
Fine ...................................................................................................................... 22
Conditions ........................................................................................................... 23
Costs ............................................................................................................................ 24
Non-publication of name ........................................................................................... 26
Result and orders ....................................................................................................... 31
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Introduction
[1] Dr A has been charged by a Professional Conduct Committee (PCC) of the
Medical Council of New Zealand (MCNZ) under the Health Practitioners
Competence Assurance Act 2003 (the HPCA Act). The Charge was amended as
noted below and is fully transcribed as amended in the Schedule to this decision.
[2] Essentially, Dr A is charged with various aspects of prescribing drugs for her
own use in breach of ethical obligations; and further of misleading or attempting
to mislead her employer and the MCNZ; and a pharmacist concerning drugs
prescribed by her.
[3] The amended Charge refers to the period of 8 May 2011 to 19 May 2017. Some
prescriptions were in Dr A’s own name; and some were in the names of
members of her family.
[4] The parties completed an Agreed Statement of Facts in which Dr A admitted the
truth and accuracy of the facts in it, that particulars 1 – 5 of the Charge were
admitted as contrary to accepted standards and amounted to professional
misconduct as malpractice or negligence and as conduct bringing discredit to
her profession. Dr A denied the allegations in particular 6 of the Charge which
related to misleading or attempting to mislead the pharmacist, [the pharmacist].
[5] The Charge was heard by the Tribunal and both parties were represented by
counsel. The PCC relied on the Agreed Statement of Facts and an agreed
Bundle of Documents and called evidence from the pharmacist referred to in the
Charge, [the pharmacist]. The agreed Bundle of Documents was produced on
the basis that had been directed at an earlier conference, namely that each
document in the bundle:
(a) is what it purports to be on its face;
(b) was signed by any purported signatory shown on its face;
(c) was sent by any purported author to, and was received by, any
purported addressee on its face;
(d) was produced from the custody of the party indicated in the index;
(e) is admissible evidence; and
(f) is received into evidence as soon as referred to by a witness in evidence,
or by counsel in submissions, but not otherwise.
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It included the complaint documentation and prescribing records with
Statements on Ethics from the MCNZ.
[6] Dr A gave evidence herself which dealt with the issues raised by particular 6 of
the Charge and canvassed various background matters and issues relating to
penalty and matters in mitigation.
Background
[7] Dr A graduated in 2002 with medical qualifications from a university offshore
New Zealand. She obtained provisional scope to practise in New Zealand in [ ]
2009. Between [ ] 2009 and [ ] 2012 she worked as a Registrar at [a district
health board].
[8] From 2010 she was prescribed medications, including anti-anxiety medications
and anti-depressant medications after presenting to her general practitioner.
Between February 2011 and May 2012 Dr A was placed under the supervision
of the MCNZ Health Committee following concerns raised about her
performance and emotional state. Her employment at [a district health board]
ended in 2012 and between [ ] 2015 and [ ] 2016 she worked as a House Officer
at a [ ] hospital.
[9] In late 2015 Dr A self-prescribed 15 tablets of zopiclone to help her to sleep.
An [ ] based pharmacist contacted the MCNZ in January 2016 informing it of
concerns of that self-prescribing; and Dr A informed the Council that this
occurred during a holiday period when she was unable to see her own general
practitioner. Dr A told the Council that she was aware of her obligations in
relation to self-prescribing, said this would not happen again, and advised that
this was a “one-off”.
[10] Dr A then worked as a general practitioner at an [ ]-based clinic at two separate
premises between [ ] 2016 and [ ] 2018. Dr A was required to work under
supervision while she had provisional registration and obtained general
registration on [ ] 2018.
[11] On 26 May 2017 the Director of the clinic at which Dr A was working and her
supervisor notified the MCNZ of concerns regarding Dr A’s self-prescribing of
zopiclone.
[12] Between 8 May 2011 and 19 May 2017 Dr A self-prescribed the various drugs
referred to in Appendix A to the Amended Charge and these include drugs with
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a risk of addiction and misuse, psychotropic medications and Class C Controlled
Drugs.
[13] Between 12 November 2015 and 14 December 2015 Dr A wrote prescriptions
for the supply of two drugs in the names of family members as set out in
Appendices B and C of the amended Charge and has admitted that she did this
knowing that the named persons were not the intended recipients and with the
intention of consuming the medications herself. These medications include
drugs of addiction and misuse, psychotropic medications and Class C Controlled
Drugs.
[14] Between 14 November 2016 and 30 March 2017 Dr A wrote and/or presented
seven Medical Practitioner Supply Orders (MPSOs) at the pharmacy next door
to the Medical Centre at which she was then working and these were for
medications as set out in Appendix D to the amended Charge. Dr A admitted
in the Agreed Statement of Facts that those medications were prescribed for her
own use and included drugs with a risk of addiction and misuse, psychotropic
medications and Class C Controlled Drugs.
[15] On 1 June 2017 Dr A advised her employer/supervisor by an email that she had
not received a prescription from her general practitioner and so wrote a
replacement prescription that was dispensed on 19 May 2017, despite having
had dispensed to her a prescription from her general practitioner for zopiclone
dated 10 May 2017. She repeated this explanation to the MCNZ in a letter dated
30 June 2017. Dr A accepts that the explanation was misleading. These are
matters which are referred to in particular 5 of the Charge, accepted by Dr A as
in breach of her ethical obligations and amounting to misconduct as stated.
[16] What is not admitted is the allegation in particular 6 concerning misleading or
attempting to mislead [the pharmacist].
The Charge – Parties’ position
[17] The PCC relied on the MCNZ’s Statement Good Medical Practice (April 2013
and December 2016 editions); Statement on providing care for yourself and
those close to you (June 2013 and November 2016 editions); Good Prescribing
Practice (April 2010 and November 2016 editions); and Prescribing Drugs of
Abuse (April 2010 edition).
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[18] Reference was made to the legal principles involved and to various cases which
the PCC said were relevant. It referred to the facts set out in the Agreed
Statement of Facts and submitted that Dr A’s conduct whether viewed
separately or cumulatively amounted to a departure from acceptable standards
that is sufficient to warrant disciplinary sanction. It further made submissions
on the disputed particular 6 mentioned below.
[19] The submissions of the counsel for Dr A accepted on her behalf disciplinary
liability in respect of her self-prescribing. She accepted the Charge regarding
misleading explanation given to [Dr E], her employer/supervisor, and the
MCNZ (particular 5). She denied particular 6 and that is dealt with below. It
was submitted that the PCC had failed to establish particular 6 on the balance of
probabilities. It is necessary to deal with that particular at this stage.
Particular 6 –misleading pharmacist
[20] The essence of this particular of the Charge is that Dr A misled or attempted to
mislead [the pharmacist], by incorrectly leading him to believe that Medical
Practitioner Supply Orders (MPSO’s) for the drugs listed in Appendix D to the
Amended Charge were for patients rather than for Dr A’s own use.
[21] [The pharmacist] gave evidence before the Tribunal. He is a pharmacist who
had been employed at the [ ] Pharmacy and is currently manager and director of
it. That pharmacy is located next door to the [ ] Medical Centre and [the
pharmacist] described how the staff at both places worked together in a very
cooperative relationship and had done for many years.
[22] He described Dr A as “very nice and polite and easy to deal with” and “very
friendly”; which he had also done in his answers to the inquiry by the PCC.
[23] [The pharmacist] said that in or around November 2016 Dr A started presenting
prescriptions for zopiclone and tramadol to be dispensed via an MPSO. When
Dr A presented the MPSO to [the pharmacist] he said that he told her that these
were not funded under the MPSO system; and that patients could get these
medications subsidised under the normal system by using a normal prescription.
He said that Dr A told him
“that it was okay to dispense this via an MPSO, and that she was going
to administer the drugs to her patients because sometimes they could not
pay for it themselves. She told me she was happy to pay for the
prescriptions herself.”
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[24] He referred to other occasions when Dr A had used an MPSO form and said that
when she did so she would wait until it was ready and would pay for it at the
pharmacy. [The pharmacist] referred to a prescription for the same drugs that
Dr A had issued to herself which he said was “sometime after this”. [The
pharmacist] then said that some other staff members had noticed that Dr A often
picked up the same medications both via MPSO and prescriptions in her own
name. They were concerned about legalities and [the pharmacist] said he went
the next day to the clinic next door where he was told by the doctor there to stop
dispensing “and that he would take care of it”.
[25] In her evidence Dr A said that when she began self-prescribing in May 2011 she
wrote down the details of the medication she wanted to prescribe on a piece of
paper; presented this to a pharmacy; and the pharmacy would generate a
prescription on the computer system which they printed and that she signed.
The pharmacy dispensed the medication.
[26] As to the period of time referred to in particular 6, Dr A said that she explained
to the pharmacist at the [ ] Pharmacy whom she saw on 14 November 2016 that
she wanted the medication for herself. She said that the pharmacist asked if she
meant via an MPSO. Dr A said that at the time she did not know what this was
and had not been dealing with MPSOs at the Clinic and had not come across
them in the hospital either. She said she had received no training or guidance
as to their use and, given the title, Medical Practitioner Supply Order, assumed
that this was the process for obtaining prescriptions for oneself.
[27] She said she therefore said yes and was provided with a printout which she
signed. She obtained 20 tablets of codeine phosphate using an MPSO that day;
and this would have been for migraines, she said. She then referred to self-
prescribing for 30 tablets of zopiclone using a normal prescription and then on
a later date 5 further zopiclone tablets via MPSO.
[28] Dr A said that she continued self-prescribing using both MPSOs and normal
prescriptions until May 2017.
[29] It was submitted for Dr A that the records showed that she obtained medications
for herself using normal prescriptions interspersed with MPSOs. It was said
that she “certainly made no secret of the fact that she was self-prescribing over
this period”.
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[30] The Tribunal accepts that but, of the period referred to in this particular of the
Charge, 14 November 2016 to 30 March 2017, there were two occasions when
Dr A used the prescription process for self-prescribing, namely on 12 December
2016 and 7 March 2017.
[31] Examples of the computer-generated forms produced by the pharmacy and
signed by Dr A were considered by the Tribunal; and it accepts that there is
significant similarity between the two forms with the distinction between a
prescription and an MPSO being hard to discern.
[32] It accepts that there could have been confusion in Dr A’s mind as to whether the
form that she was signing was an MPSO or a prescription. Under cross-
examination [the pharmacist] said that he could not be 100% sure about the
exchanges he had with Dr A on this topic. He also acknowledged that it was
not he who dealt with Dr A on these occasions but another staff member.
[33] The particular of the Charge is that Dr A misled or attempted to mislead [the
pharmacist]. This is said to have been by incorrectly leading him to believe that
the MPSOs were for patients’ use rather than Dr A’s own.
[34] Having heard the evidence from the two witnesses on the subject, the Tribunal
has concluded that there is sufficient doubt about the exchanges that occurred
between Dr A and [the pharmacist] so that it is not satisfied on the balance of
probabilities that particular 6 of the Charge is made out on the facts. There is
simply no convincing evidence of his having had exchanges with her as alleged.
[35] There was no evidence from other pharmacists at the pharmacy (and the Charge
as originally laid had named another pharmacist as misled). There was no
evidence to refute what Dr A said about the process she followed for getting her
self-prescribed medication, namely handwriting the requirement and having the
pharmacy computer-generate a form. That being so, it is likely that, in respect
of the MPSOs, it was the pharmacy that generated the MPSO forms in question.
There is a likelihood that the pharmacist doing so was aware that Dr A had been
a self-prescribing using prescription forms. There were some uncertainties in
the evidence that [the pharmacist] gave.
[36] This particular of the Charge is not found made out.
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The Charge – Discussion
[37] The Charges are laid under section 100(1)(a) and/or (b) of the HPCA Act. These
provide that orders can be made by the Tribunal if, after conducting a hearing,
it finds that the practitioner has been guilty of professional misconduct because
of any act or omission that amounts to malpractice or negligence in relation to
the scope of practice in respect of which the practitioner was registered at the
time of the conduct or because of any act or omission that has brought or was
likely to bring discredit to the profession in which the practitioner practised at
the time of the conduct.
[38] If negligence or malpractice is alleged that must be established as behaviour
which falls seriously short of that which is to be considered acceptable and not
mere inadvertent error or oversight or even carelessness.
[39] Discredit to the profession involves a breach of an objective standard with the
question to be asked being whether reasonable members of the public informed
and with knowledge of all the factual circumstances, could reasonably conclude
that the reputation and good standing of the profession in question was lowered
by the behaviour of the practitioner.1
[40] In considering any charge of misconduct under the HPCA Act the Tribunal
must, having found acts or omissions in question which were malpractice or
negligence or conduct likely to bring, or which brought, discredit to the relevant
professional, also consider whether the acts or omissions in question are of such
severity as to warrant a disciplinary sanction for the purpose of maintaining
standards, protecting the public, or punishing the practitioner.2
[41] The onus of proving the Charges lies on the PCC. The standard is the balance
of probabilities. The more serious the allegation, the higher the level of proof
required.
[42] The Tribunal has taken account of the following extracts submitted by the PCC
to be relevant.
a) Good Medical Practice – December 2016.
“9. You may prescribe drugs or treatment, including repeat
prescriptions, only when you:
- have adequate knowledge of the patient’s health.
- are satisfied that the drugs or treatment are in the patient’s best
interests”.
1 Collie v Nursing Council of New Zealand; [2001] NZAR 74 at [28]. 2 PCC v Nuttall; 8/Med04/03P.
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“11. Other than in exceptional circumstances you should not provide
medical care to yourself or anyone with whom you have a close
personal relationship”.
b) The Statement on providing care to yourself and those close to you (June
2007 edition applicable to part of the period in question):
“05 The following are specific situations when treating yourself,
family members, people you work with and friends that should
be avoided:
- Prescribing or administering drugs of dependence.
- Prescribing psychotropic medication.
- Undertaking psychotherapy.…
“06 It is also inappropriate to provide care to yourself and those
close to you in the majority of other clinical situations”.
(emphasis added).
The June 2013 edition applicable to part of the remainder of the period
provides:
“The Medical Council recognises that there are some situations where
treatment of those close to you may occur but this should only occur
when the overall management of patient care is being monitored by an
independent practitioner. Wherever possible doctors should avoid
treating people with whom they have a personal relationship rather than
a professional relationship. Providing care to yourself or those close to
you is neither prudent nor practical due to the lack of objectivity and
discontinuity of care.
…
2. Every doctor should have his or her own general practitioner
because an individual doctor cannot provide objective
assessment of his or her own condition.
3. Self assessment may impair judgement about the diagnosis or
treatment. Concern about personal and professional
commitments may mean that you do not seek and receive proper
care.”
The November 2016 edition of this statement (also applicable to part of
the period) provides that a doctor “must not treat yourself, family
members, or those close to you” [emphasis in text] in circumstances
including prescribing or administering medication with a risk of
addiction or misuse or prescribing controlled drugs as specified and
described under the Misuse of Drugs Act 1975.
c) The MCNZs statement Good Prescribing Practice includes a clause
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“5 Avoid writing prescriptions for yourself or those with whom you
have a close personal relationship. It is never appropriate to
prescribe or administer drugs of dependence or psychotropic
medication to yourself or someone close to you”.
d) In Prescribing drugs of abuse (April 2010) it is stated that doctors must
ensure that the intended recipient is not dependent on the prescribed
drugs and consider the possible consequences of overdose and
development or maintenance of a drug habit.
[43] While the Tribunal must consider each case on its merits, reference should also
be made to other decisions to ensure consistency. The parties referred to several
cases including:
Dr S3 who prescribed medications, including prednisone and zopiclone, in her
own name or those of family members on multiple occasions over a three year
period. This was found to be misconduct warranting sanction. There was a
fourth charge relating to a conviction for driving with excess blood alcohol. The
doctor was censured, fined $5,000.00, had conditions on her practice, and was
ordered to pay costs. An order was made for non-publication of her name.
Dr Kleszcz4 who wrote a prescription in the name of a patient where the
prescribed medicines were not intended for the patient; and made false claims
as to the intended use of a prescription. This was found to be misconduct
warranting sanction. The doctor did not attend the hearing and her registration
was cancelled, she was censured and ordered to pay costs.
Dr Craig5 who was addicted to zopiclone and triazolam wrote prescriptions in
the name of family and friends over a 15 month period and self-prescribed
without appropriate oversight. This conduct was found misconduct warranting
disciplinary sanction. She was censured, had conditions placed on her on-going
practice, and was ordered to pay costs. The Tribunal did make reference, as
emphasised by the submissions for the PCC, to the prospect of cancellation of
3 994/Med18/417P 4 855/Med16/353P 5 844/Med16/348P
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registration in that case being inappropriate having regard to mitigating
considerations.
Dr N6 where a doctor made false entries in a Controlled Drugs Register to obtain
fentanyl, morphine and pethidine. These were for his personal use and
fraudulent entries in patient notes concealed this. The doctor was censured,
fined $8,000.00 with conditions on his practice and an order for costs. Name
suppression was ordered on appeal by the High Court.
Dr T7. This doctor wrote false prescriptions on 52 occasions in the names of
family members and on two occasions in her own name to obtain various drugs
for her personal use. Although charged in the court she was granted diversion.
She was censured with conditions on her return to work and an order for
contribution to costs; with name suppression being ordered.
[44] On the basis of the principles stated in the MCNZ literature and the decisions
the Tribunal finds that the Charge (apart from particular 6 which has been
dismissed) is made out in all its other particulars.
a) Particulars 1 and 2 refer to prescribing by Dr A in her own name or those
of her [ ] and [ ] were a breach of the standards that apply. In respect of
her [ ] and her [ ], the records of prescription for them would have been
inaccurate and could have affected future treatment for them.
b) Particular 3 relates to the use of MPSOs to obtain drugs again for Dr A’s
own use. This too is an abuse of the privileges and responsibilities that
doctors are given to use Medical Practitioner Supply Orders. The
entitlement for that process is given to them as responsible professionals
and using them to obtain drugs for her own use, even if she thought that
the pharmacist was aware of what she was doing, was an abuse of that
privilege and responsibility.
c) Particular 4 relates to consumption of the drugs in question without
adequate independent medical oversight. Dr A had her own general
practitioner and had had prescriptions from that person for drugs that she
6 812/Med15/335P 7 636/Med14/272P
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needed including those in question in this Charge. The practitioner was
overseeing her use of those drugs and health generally and for Dr A to
have consumed the drugs without that practitioner’s, or any other
adequate independent, oversight, put her health at risk and in jeopardy.
It also meant that the records that her own general practitioner was
keeping as to her use of these drugs was inaccurate. Subsequent advice
and prescription from her medical practitioner could have been
inaccurate and jeopardised not only Dr A but also the professional
reputation of her own doctor.
d) Particular 5 is a separate issue which is that of misleading or attempting
to mislead both her employer and the MCNZ in her advice concerning
the prescription dispensed on 10 May 2017. It is misconduct as
malpractice and conduct bringing discredit to her profession for Dr A to
attempt to mislead her employer and the MCNZ, she not having received
the prescription from her own general practitioner and writing the
replacement prescription accordingly. In her evidence to the Tribunal
Dr A said that the explanation she gave on 19 May 2017 concerning the
prescription on 10 May 2017 was that it had been prescribed for her by
her own general practitioner but she had not had time to collect it from
the pharmacy next door to that practitioner’s practice. She told her
employer that the pharmacist informed her that she could write an
interim prescription so long as it was a regular medication previously
prescribed. What she accepted and admitted to, however, was that that
explanation related to an incident that had happened some six months
earlier. The explanation given to her employer was therefore, in respect
of 10 May 2017 prescription, wrong. Dr A said she was afraid of the
consequences of owning up to this when she spoke to her employer for
whom she had a lot of respect. As to misleading the MCNZ, Dr A said
that, having given the explanation to her employer, she “felt like [she]
was stuck with the explanation” that she had provided. Dr A
acknowledged that what she said was misleading and a breach of her
professional obligations and accepted that this was sufficient to warrant
disciplinary sanction. The Tribunal is prepared in the circumstances to
accept that the explanation she had given to her employer and then to the
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MCNZ was something that could have related to an earlier incident; but
the fact of the matter is that it did not relate to the events to which the
Charge refers and this particular is also found made out.
e) As to the remaining particulars, particular 6 has been dismissed,
particular 7 relates to ethical obligations, and particular 8 is the charge
of misconduct. The Charge as amended is, in all its particulars except
particular 6, and each of particulars 1, 2, 3, 4 and 5 severally and
cumulatively, misconduct as malpractice and conduct bringing discredit
to her profession and warranting disciplinary sanction.
That decision having been announced to the hearing the Tribunal was then
addressed on the question of penalty.
Penalty - the parties’ positions
[45] The PCC did not press for orders for cancellation of Dr A’s registration or any
suspension and sought orders for censure, conditions on her practice, fine, and
costs.
[46] The submissions addressed the legal principles in question and referred to
previous cases, including those mentioned earlier. Aggravating features were
said to be the level of prescribing, the sustained course of conduct and level of
premeditation, the misleading conduct in respect of particular 5, the risk to
family members and to herself and breach of trust. These are certainly features
of the Charge to be taken into account but are not necessarily “aggravating”.
[47] The submissions accepted as mitigating factors Dr A’s admission of
wrongdoing and the significance of her personal circumstances (referred to
below).
[48] As well as submissions on her own behalf Dr A gave evidence to the Tribunal.
While this included evidence as to matters of fact in particular 6, it also
contained a significant amount of factual material concerning Dr A and her
personal situation and the Tribunal has taken this significantly into account. The
full detail is not transcribed in this decision.
[49] In summary, however, Dr A, who was born in a country in [ ] graduated with a
Bachelor of Science majoring in Human Biology. Despite difficulties with her
family life she continued with her medical studies resulting in her Bachelor of
Medicine and Bachelor of Surgery.
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[50] During Dr A’s early years as a wife and mother her husband had to travel to the
[ ] for his work and she was left to complete her internship before joining him.
Her career required that she complete two further years of study and this was
difficult, she said, as she had to spend time in hospital accommodation away
from her family during the week.
[51] Her husband then chose to find work in New Zealand and Dr A followed him.
Then after a further period of separation she completed her second year of
further qualification. The travel to New Zealand was disruptive to her [ ]
children, but furthermore she then found she needed to have completed three
years in a comparable health system to obtain provisional registration. She
chose to travel to [ ] to complete her final year and found this “extremely
challenging being away from [her] family”. She persevered with that and in
due course, with her family increasing, she learned of [ ] which led to their
separation.
[52] About this time (2009) Dr A found that she had difficulty sleeping. Further
changes occurred for her while she attempted to salvage her marriage and she
found work in [ ], but her oldest child remained living elsewhere while he
finished his schooling. With another young baby at that stage she had difficulty
getting adequate sleep and presented to her general practitioner.
[53] She was prescribed medication to assist and other medication for other issues.
Concerns were raised regarding her health and in February 2011 Dr A was
placed under the supervision of the MCNZ Health Committee which referred
her for further specialist advice and help. The outcome was that she was
advised to continue taking medications prescribed by her GP and was referred
to a clinical psychologist.
[54] It was in May 2011 that she began self-prescribing the same medications as had
been prescribed by general practitioners. She described that she felt anxious
that she would run out otherwise.
[55] She completed a Performance Assessment in [ ] 2012 and had difficulty
renewing her Annual Practising Certificate but did achieve that. She finally
separated from her husband toward the end of 2013.
[56] Dr A described the various places she had worked at and effort she had made to
obtain work in her chosen profession. This required at one stage travelling back
and forth from a city at some distance from [ ] to spend time with her family.
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[57] Dr A’s level of self-prescribing then slowly increased and there are the three
occasions (6 drugs) referred to in Appendices B and C of the Amended Charge
in the names of her [ ] and [ ]. The self-prescribing escalated and in early 2016
Dr A was reported to the MCNZ for self-prescribing zopiclone.
[58] Dr A continued with the issues of obtaining and maintaining work in her chosen
profession while at the same time discharging her responsibilities as a mother
and she described this as stressful. She had problems with sleep, anxiety and
migraines and struggled to cope. There was the further prescribing to which the
Amended Charge and its particulars refer. Dr A then described her deep
embarrassment and shame and the steps she has taken towards rehabilitation.
[59] Regular reports to the Health Committee of the MCNZ have helped Dr A to
identify effective ways of dealing with the issues in her life and recognise early
warning signs of changes. Changes to her personal life and support through
family and church have assisted her in rehabilitation.
[60] Submissions on Dr A’s behalf referred to the circumstances of her self-
prescribing. They also referred to various references and other support material
produced. Those included:
a) A letter from her general practitioner who has helped her since 2010
described the excellent progress that she was making and her steady
decrease in use of medication. That general practitioner had also said
earlier to the MCNZ that Dr A did not exhibit the symptoms of someone
with a dependence or addiction to these medications.
b) A letter from Dr A’s counsellor, a trauma psychologist specialising in
stress-related disorders. The Tribunal has taken the detail of that report
carefully into account including that Dr A is “in a very different place
now”. There are nine points made in that report positive to Dr A’s
current position. Dr A does not present any on-going risk associated
with her professional practice, it is said; but the belief that “she is now
on a safer path”.
c) A letter from a Consultant Psychiatrist describing his consultation with
Dr A and his conclusions.
d) A letter of support from the employer to whom particular 5 refers. This
is particularly important given that he was the subject of the misleading
conduct to which that particular refers. He said there was no
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unsatisfactory feedback from patients, nursing staff or doctors. He spoke
of his involvement in the May 2017 incident, describing that he reported
it due to his concern about Dr A’s absenteeism at the time. He said there
was at no time evidence of physical or mental impairment at work and
that Dr A’s behaviour, professionalism and clinical practice were
exemplary.
e) Another doctor who has known Dr A over the last three years who
described her as a competent clinician, a compassionate and dedicated
health practitioner who demonstrates a caring attitude and thorough
approach in her dealings with patients.
[61] The submissions for Dr A also referred to the fact that the medications were
being simultaneously prescribed by others and that these were not “high risk”.
It was emphasised that Dr A was also seeing her general practitioner regularly
over the period of her self-prescribing and there was a degree of medical
oversight provided from that.
[62] Other mitigating factors emphasised were that the prescribing in the names of
others was only brief and isolated, that the misleading conduct was the result of
various stressors, that there was no impact on Dr A’s work and no harm to
patients, that Dr A had taken the steps that she has to be rehabilitated and to deal
with the issues that had confronted her, that Dr A’s response has included in her
evidence to the Tribunal: “Ironically, I am glad that all of this is out in the open
now. I feel like a weight has in some way been lifted off my shoulders.” and Dr
As’ current circumstances.
[63] An aggravating factor accepted was that Dr A self-prescribed while under the
supervision of the Health Committee and that she had received a warning from
the MCNZ in 2015 with the submission made by Dr A that her actions were not
driven by any specific intention to breach standards but rather by the debilitating
anxiety and fear. The submissions addressed the question of a fine and
conditions dealt with below.
Penalty – discussion
[64] The available penalties for the Tribunal are:8
8 Section 101 of the HPCA Act
18
a) That registration be cancelled.
b) That registration be suspended for a period not exceeding 3 years.
c) That the health practitioner be required, after commencing practice
following the date of the order, for a period not exceeding 3 years, to
practise his or her profession only in accordance with any conditions as
to employment, supervision, or otherwise specified.
d) Censure.
e) A fine of up to $30,000.00 (but not if he or she has been convicted of a
relevant offence or damages have been awarded against him or her – not
the case here).
f) Costs.
[65] The principles behind penalty orders of the Tribunal as clearly set out on the
basis of authorities9 are:
a) What penalty most appropriately protects the public.
b) The important role of setting professional standards.
c) A punitive function (although this is not the principal purpose behind in
the order but may be a secondary consequence. This topic is discussed
further below).
d) Rehabilitation of the health professional.
e) That any penalty imposed is comparable to other penalties imposed upon
health professionals in similar circumstances.
f) Assessing the health practitioner’s behaviour against the spectrum of
sentencing options that are available and trying to ensure that the
maximum penalties are reserved for the worst offenders.
g) An endeavour to impose a penalty that is the least restrictive that can
reasonably be imposed in the circumstances.
h) Whether the penalty proposed is fair, reasonable and proportionate in the
circumstances presented.
[66] In A v Professional Conduct Committee10 the High Court said that four points
could be expressly and a fifth by implication from the authorities namely:
9 Roberts v Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC
3354; Katamat v PCC [2012] NZHC 1633 at paragraph 49 and Joseph v PCC; [2013] NZHC 1131
at [65] – [66]; Singh v Director of Proceedings, [2014] NZHC 2848 (esp. paragraphs [56] – [60]
and [66]) 10 A v Professional Conduct Committee [2008] NZHC 1387 at [81]
19
“First, the primary purpose of cancelling or suspending registration
is to protect the public, but that ‘inevitably imports some punitive
element’. Secondly, to cancel is more punitive than to suspend and
the choice between the two turns on what is proportionate. Thirdly,
to suspend implies the conclusion that cancellation would have been
disproportionate. Fourthly, suspension is most apt where there is
‘some condition affecting the practitioner’s fitness to practise which
may or may not be amenable to cure’. Fifthly, and perhaps only
implicitly, suspension ought not to be imposed simply to punish.”
[67] The Court went on:11
“Finally, the Tribunal cannot ignore the rehabilitation of the
practitioner: B v B (HC Auckland, HC 4/92, 6 April 1993)
Blanchard J. Moreover, as was said in Giele v The General Medical
Council [2005] EWHC 2143, though ‘ … the maintenance of public
confidence … must outweigh the interests of the individual doctor’,
that is not absolute – ‘the existence of the public interest in not
ending the career of a competent doctor will play a part.”
[68] The Tribunal is also mindful of the remarks of Randerson J in Patel v Dentists
Disciplinary Tribunal12. That case involved an appeal by a dentist whose name
had been removed from the register by the Dentists Disciplinary Tribunal in
relation to charges arising from his treatment of an elderly couple for whom he
carried out crown and bridge work, accepted by the Court as being “grossly
incompetent and completely unacceptable”13.
[69] In discussing the purpose of disciplinary proceedings the Court said:
“[28] The Dentist Act does not provide any guidance on this
subject but I am satisfied that the following statement of principle
by Eichelbaum CJ in Dentice v Valuers Registration Board [1992]
1 NZLR 720, 724-725 is apposite in this case:
Although, in respect of different professions, the nature of
the unprofessional or incompetent conduct which will attract
disciplinary charges is variously described, there is a
common thread of scope and purpose. Such provisions exist
to enforce a high standard of propriety and professional
conduct; to ensure that no person unfitted because of his or
her conduct should be allowed to practise the profession in
question; to protect both the public and the profession itself
against persons unfit to practise; and to enable the
professional calling, as a body, to ensure that the conduct of
11 At [82] 12 Auckland HC; AP77/02; 8/10/02; 13 Paragraph 32
20
members conforms to the standards generally expected of
them; see, generally, Re A Medical Practitioner [1959]
NZLR 784 at pp 800, 802, 805 and 814. In New Zealand,
such provisions exist in respect of medical practitioners,
barristers and solicitors, dentists, architects, pharmacists,
real estate agents and a number of other professionals and
callings, as well as valuers; …
[29] In the light of those general purposes, it is also relevant to
consider the purpose of the removal of a practitioner’s name from
a professional register. There is authority for the proposition that
removal from a professional register has a protective purpose and
is not designed to punish the professional concerned: Re A Medical
Practitioner [1995] 2 QBR 154, 164. Plainly, removal from the
register does serve to protect the public but it also serves the
function identified in Dentice of maintaining professional standards
and maintaining public confidence in the standing of the profession.
It also acts as a deterrent to the individual concerned and others in
the profession.
[30] The consequences of removal from a professional register
are ordinarily severe and the task of the Tribunal is to balance the
nature and gravity of the offences and their bearing on the dentist’s
fitness to practise against the need for removal and its consequences
to the individual: Dad v General Dental Council at 1543. As the
Privy Council further observed:
Such consequences can properly be regarded as inevitable
where the nature or gravity of the offence indicates that a
dentist is unfit to practise, that rehabilitation is unlikely and
that he must be suspended or have his name be erased from
the register. In cases of that kind greater weight must be
given to the public interest and to the need to maintain public
confidence in the profession than to the consequences of the
imposition of the penalty to the individual.
[31] I respectfully adopt the observations of the Privy Council
and would add that it is incumbent on the Tribunal to consider
carefully the alternatives available to it short of removal and to
explain why the lesser options have not been adopted in the
circumstances of the case. As well, while absolute consistency is
something of a pipe dream, and cases are necessarily fact
dependent, some regard must be had to maintaining reasonable
consistency with other cases. That is necessary to maintain the
credibility of the Tribunal as well as the confidence of the profession
and the public at large”.
[70] The parties have agreed that this is not a case which calls for the Tribunal to
consider orders for cancellation or for suspension. It is for the Tribunal
21
ultimately to decide, but that is an appropriate position to take and the Tribunal
is of that view too.
[71] This practitioner has had a rocky road in her quest for pursuit of her professional
life. This is summarised only briefly in this decision and more detail was given
by Dr A to the Tribunal. She has worked hard in at least four countries to
achieve the qualification and experience that she needed. Complications in her
early life made completing her qualifications in a country of birth difficult; she
has had to move twice because of work positions taken by her former husband
and this has significantly disrupted her study and qualification process; she has
had a young family for whom she has had to care and give time; and there have
been significant periods of separation from her family while she pursued her
study requirements and work needs.
[72] She appears to have persevered through all this and to have achieved the
qualification and experience she sought. There was no suggestion of any
inadequacies in her professional life and discharge of responsibilities.
[73] The Charge, apart from the misleading issues, relates to her abuse of the powers
to prescribe as a medical practitioner (whether by prescription or by MPSO);
and her abuse of drugs that she had prescribed for herself. Dr A has been
through the period of her life when this seemed to be a necessary course for her
and appears to have moved out the other end and successfully begun to establish
her rehabilitation. There has been the support of the Health Committee of the
MCNZ and her own general practitioner and other advisers. She appears to have
stable employment and a supportive employer with support from her church and
has many of the stressors earlier applying now under control.
[74] Rehabilitation is a significantly important factor in this case and the orders of
the Tribunal should reflect that.
[75] Also of importance is protection of the public. The Tribunal does not see that
there has been any evidence of risk to the public from Dr A’s self-prescribing
or the taking of the medications that she has; and no evidence was presented of
any addiction to any of these on her part.
[76] The Tribunal has noted the other cases referred to by submissions from the
parties some of which are mentioned above.
22
[77] The Tribunal has concluded that on the basis of the various cases and principles
concerning orders for penalty and for the reasons given there should be no order
for cancellation or suspension of Dr A.
Censure
[78] It is appropriate, as both parties have submitted, that there be an order for
censure. This is to express the Tribunal’s disquiet with the offending by Dr A
and her breach of standards applicable to her professional conduct.
Fine
[79] The PCC pressed for an order for fine referring to the maintenance of
professional standards and protection of the public. A fine, it was said, would
fulfil the purpose of denunciation and deterrence and is consistent with the cases
mentioned.
[80] For Dr A it was submitted that a fine would have a punitive effect not
appropriate in a case like this where the misconduct was driven by mental health
issues rather than any desire to breach professional standards. There was little
provided to the Tribunal as to the means from which Dr A could meet such a
fine. Counsel said that she did not own her own home and had a large liability
arising from her marriage breakdown. It was said, however, that she had family
monies that she could call on to pay a fine.
[81] The Tribunal has determined that a fine should be ordered in this case. There
are the important questions of deterrence both for Dr A herself and for other
members of her profession (and, as relevant, other health practitioners).
[82] Absent any cancellation, suspension, or fine, the only deterrent outcome for Dr
A would be the imposition of conditions and the Tribunal does not consider that
that is adequate. Comparison is made with the cases of Dr S and Dr N who were
fined $5,000.00 and $8,000.00 respectively. The Tribunal does not accept that
the fact that this misconduct was driven by mental health issues rather than “any
desire to breach professional standards” precludes the order for fine.
[83] This behaviour by Dr A is behaviour by a medical practitioner in an abuse of
the privileges of her position and is conduct which brings discredit to her
profession.
23
[84] Another factor which has some relevance is that, given that the Tribunal orders
below the non-publication of Dr A’s name or identifying details, there will be
relatively little financial consequence to her as might otherwise be the case had
that order not been made.
[85] In all the circumstances the Tribunal determines that a fine of $5,000.00 should
be ordered and this is included below.
Conditions
[86] Various conditions were suggested by submissions for the PCC. In submissions
on her behalf Dr A expressed her agreement to reasonable conditions being
imposed. She accepted that it was likely she would be required to remain under
the supervision of the Health Committee of the MCNZ and comply with its
directions and requirements. This would, it was submitted, address the concerns
about public safety.
[87] Dealing with the conditions proposed by the PCC and further condition required
by the Tribunal, therefore:
a) First it was submitted that Dr A undertake a practical education
programme designed by the medical advisers to the MCNZ which
focused on the statements Providing care to yourself and those close to
you and Good Prescribing Practice, professional boundaries and ethics
in medicine. It was submitted that this be undertaken concurrently with
12 months employment and at Dr A’s cost. Dr A is bound already as a
practitioner to comply with all MCNZ publications including Good
Prescribing Practice. The Tribunal emphasises that she has that
obligation, as does every medical practitioner, in any event. In the
circumstances of this case, however, there is benefit and value in Dr A’s
having to undertake that practical education programme. This to be on
the terms proposed namely undertaken at her cost within 12 months; and
a condition is included below.
b) For a period of 3 years Dr A be required to advise future employers of
the Tribunal’s decision and its orders. That is an appropriate condition
and is included.
24
c) That Dr A be required forthwith to advise the Health Committee of the
MCNZ of this decision, the Charges against her and any background
detail sought and this is ordered below.
d) That for a period of 3 years from recommencement of practice Dr A is
to comply at her cost with all directions, recommendations and
requirements of the Health Committee of the MCNZ including its
requirements for proof of compliance. Again that seems an appropriate
condition and is effectively accepted by Dr A through submissions.
e) There was then proposed a condition for monitoring by the Health
Committee of Dr A’s prescribing but the Tribunal considers that this is
not a condition that the Tribunal can or should impose by order; but
rather should be a recommendation from the Tribunal to that Committee.
The Tribunal makes the recommendation below that the Health
Committee obtain dispensing information from the Ministry of Health
regularly to monitor Dr A’s compliance with the publication statement
Good Prescribing Practice and other relevant Codes
f) The Tribunal further orders below the condition that for that period of
three years Dr A is not to write or be involved in any way in the
completion of a Medical Practitioner Supply Order. She has
demonstrated a lack of understanding of this process and, while this
should be remedied by the training mentioned above, the Tribunal does
not consider she should have the power or authority to use those for that
period.
Costs
[88] The PCC referred to applicable principles and sought a contribution to its costs.
It advised that its estimate of costs totalled $36,167.30. An estimate of the costs
of the Tribunal for a three day hearing was provided totalling $53,353.37. The
Tribunal accepts the PCC costs as estimated but reduces the costs allowance for
the Tribunal, having regard to the shorter hearing time of two days, to
$50,000.00. That gives a total cost of approximately $86,000.00.
[89] On the basis of authorities the PCC submitted that a costs order of approximately
30 – 50% would be appropriate to reflect orders in similar cases.
25
[90] For Dr A it was submitted that her contribution of no more than 20% would be
appropriate. Reference was made to general principles of and the following
factors:
a) That Dr A had been cooperative throughout the proceeding.
b) That she had agreed to proceed in the matter by an Agreed Statement of
Facts thus reducing the costs required.
c) That she was successful in defending one particular which took one
entire day to address.
d) That she and members of the profession should not be dissuaded from
cooperating and participating as she has by an order for costs.
e) The following extract from Vatsyayann v Professional Conduct
Committee of the New Zealand Medical Council14:
“So far as costs orders were concerned, the Tribunal correctly
addressed a number of authorities and principles. These included
that professional groups should not be expected to bear all the
costs of a disciplinary regime and that members of the profession
who appeared on disciplinary charges should make a proper
contribution towards the cost of the inquiry and a hearing; that
costs are not punitive; that the practitioner’s means, if known, are
to be considered; that a practitioner has a right to defend himself
and should not be deterred by the risk of a costs order; and that it
in a general way 50% of reasonable costs is a guide to an
appropriate costs order subject to a discretion to adjust costs
upwards or downwards…”
[91] Section 101 of the HPCA Act provides in this context:
“… the Tribunal may— ….
(f) order that the health practitioner pay part or all of the costs and
expenses of and incidental to any or all of the following:
(i) …
(ii) any inquiry made by a professional conduct committee in
relation to the subject matter of the charge:
(iii) the prosecution of the charge by … a professional
conduct committee, …:
(iv) the hearing by the Tribunal”.
[92] In addition to the authority cited above there is from Cooray v Preliminary
Proceedings Committee15:
14 [2012] NZHC 1138 at [34] 15 Wellington HC: AP 23/94; 14/9/95; Doogue J;
26
“It would appear from the cases before the Court that the Council [the
MCNZ that then had jurisdiction in the matter] in other decisions made
by it has in a general way taken 50% of total reasonable costs as a guide
to a reasonable order for costs and has in individual cases where it is
considered it is justified gone beyond that figure. In other cases where
it has considered that such an order is not justified because of the
circumstances of the case, and counsel has referred me to at least two
cases where the practitioner pleaded guilty and lesser orders were
made, the Council has made a downwards adjustment”.
[93] As noted above in the context of a fine, some detail was given to the Tribunal
about Dr A’s financial position and means.
[94] The Tribunal must weigh up carefully the competing considerations as
mentioned in the authorities. An order for costs is not to be a penalty against
the practitioner; but on the other hand, any contribution that that practitioner
does not make must be met by the profession as a whole in maintaining its own
standards.
[95] There is a balance to be struck. Dr A has been given the chance through the
orders of the Tribunal to proceed with practice without any significant financial
consequences that might have grown from publication of her name (refer
below). Credit should be given for the fact that one particular of the Charge,
particular 6, has not been found to be made out and the Tribunal accepts that
there was time taken to consider this particular (which possibly may not have
made any substantial difference in outcome). It is a difficult balance to assess
how much cost has been saved by cooperation as this can often involve a
significant amount of work (and therefore cost) on the part of counsel for the
parties.
[96] On balance the Tribunal has concluded that the appropriate contribution to be
ordered against Dr A should be 35% and this is approximately $30,000.00 which
is ordered below.
Non-publication of name
[97] Dr A sought a permanent order for non-publication of her name on the grounds
that there was serious risk that publication of her name could cause
disproportionate harm to her health and her ability to function in practice.
Submissions address the “desirability” test referred to in section 95(2) of the
HPCA Act referred to below.
27
[98] Relevant factors on the authorities were said to include:
a) The risk of harm to the interests of third parties.
b) Any adverse impact upon the prospects for rehabilitation. The impact
upon financial and professional interests.
c) The seriousness of the offending and
d) The public interest in knowing the name of the person seeking name
suppression– “openness”.
[99] Emphasis was placed on the primary purpose and principle of the HPCA Act
namely the protection of the health and safety of members of the public.
Reference was made to extracts from Director of Proceedings v Johns16
“51. Proceedings before this Tribunal are not punitive. The principal
objectives of this Tribunal are to protect the public and maintain
professional standards. The issue of suppression in this case is to be
determined by bearing these objectives in mind at all times when
balancing the competing public and private interests”.
[100] Reliance was placed on the judgment of the High Court in ANG v PCC17. In
that case the Tribunal had declined an order for non-publication but this was
reversed by the High Court on appeal. The judgment contained reference to the
distinction between the public having a right to know and its need to know. It
included18:
“Given [that he was not suspended], there can be no suggestion that
suppression of this doctor’s name and the area where he practised,
together with publicity that he has been allowed to continue practising,
will undermine public confidence in the administration of the
competence of health practitioners”.
The judgment also said19
“Section 95 (1) reflects the principle that hearings of a Court should be
conducted in public, absent special reasons. That principle does not
reflect some inherent constitutional right of the public to know
subsequent to the hearing, every aspect of the hearing”.
[101] In the case PCC v S20 referred to above an order for non-publication was made,
the Tribunal having particular regard to:
16 850/Med15/318D 17 [2016] NZHC 2949 18 Paragraphs [73] – [74] 19 Paragraph 76 20 994/Med18/417P
28
a) The fact that the offending did not affect others than the family members
to whom she had prescribed.
b) The absence of any risk that others may be unfairly impugned if the
doctor was not named.
c) That the facts behind the Charge did not impact upon the doctor’s
professional expertise, such that prospective patients should not be
compromised.
d) The fact that the doctor was still practising and her rehabilitation was of
importance.
[102] It was submitted for Dr A:
a) That future patients do not stand to gain anything material by knowing
her identity;
b) That her conduct did not place patients at risk of harm;
c) That her self-medicating was designed to help her to work effectively,
given that her life at home was unmanageable;
d) That she has addressed the conduct and undertaken extensive
counselling, is well supported by a general practitioner, her counsel and
the Health Committee of the MCNZ.
e) That there is relatively low public interest and this must be balanced
against the competing applicable private interests and the risk of harm if
her name or identifying details are published.
[103] Reference was made to extracts from the letters from Dr A’s counsellor and her
general practitioner supporting non-publication of her name. Emphasis was
placed on extracts from the judgments referred to above.
[104] It was submitted that there was a great risk that Dr A would have difficulty
working in general practice if her name is published in connection with this
matter. There is stigma, it was said, around people who suffer and have suffered
from the conditions that Dr A has and there may be patients who refuse to be
treated by her or to engage in a therapeutic relationship with her. These were
said to have significant consequences for her ability to obtain work, particularly
regarding her name in New Zealand. Proportionality was emphasised with
reference to the judgment in J v DP21.
21 [2006] BCL 1003 at [71]
29
[105] In reply submissions for the PCC referred to the question being whether the
private interests of Dr A and any other relevant circumstances outweigh the
public interest. Reference was made to principles and other authority including
extracts from Rowley v Commissioner of Inland Revenue22 and Hart v
Standards Committee (No 1) of the New Zealand Law Society23. It was said, in
reliance on Davey v Professional Conduct Committee of the Nursing Council24
that publishing a practitioner’s name is an essential part of ensuring
transparency in the disciplinary process. Openness, it was argued, demonstrates
accountability and promotes public confidence in the profession and this
principle ties in strongly with the central legal proposition that justice must not
only be done but must be seen to be done.
[106] The Tribunal has considered the submissions and the authorities carefully and
has concluded that an order should be made as sought. This case involved Dr
A’s own self-prescribing of drugs for her own use. She did briefly use the names
of close family members. She inappropriately signed MPSOs for drugs that
were for her own use, although she has explained the background to this which
the Tribunal accepts. She did deceive her employer and the MCNZ, but again
the circumstances there have been explained by her as accepted by the Tribunal.
There is no evidence of any patient having been harmed as a consequence of
this behaviour or put at risk as a consequence of this behaviour (although the
position for the family members is compromised).
[107] Dr A has taken control of herself and the situation and has significant support
from various quarters as noted. She is on the road to rehabilitation and the orders
of the Tribunal, including conditions, are directed toward her maintaining that
control and that forward movement. The case will be publicised as relating to a
general practitioner who self-medicated in that way but is now in an improving
situation. There is very little risk of other practitioners being impugned or any
adverse consequences for other practitioners. The future patients for Dr A need
not know of this personal situation for her as this will not impact on her
professional discharge of responsibilities to them.
22 [2011] NZSC 76 23 [2011] NZCA 676 at [18] 24 [2012] NZHC 765 at [9]
30
[108] The Tribunal does not see there is a significant risk to the public in this way.
There could be significantly detrimental effects from a refusal to order non-
publication as sought. The public had the right to attend the hearing. They have
the right to know the outcome of the disciplinary process against this doctor in
the circumstances of the case. They do not necessarily have the right to know
the identity of the practitioner involved unless this impacts in some way on the
future care or medical services that the public may seek.
[109] The private interests for Dr A in this case are high and have outweighed any
public interest in knowing of her identity. The order for non-publication of her
name and identifying details is made below.
[110] There was also sought to be excluded from that order for non-publication, a
provision allowing the MCNZ to publish on its website and in other formal
documents the conditions that have been ordered in respect of Dr A’s practice.
It is quite appropriate that it should be able to do so without any breach of the
order for non-publication of her name. There was no opposition to this from
submissions on her behalf. This exception is also ordered below.
[111] It was further agreed between the parties that, in any event, an order should be
made prohibiting publication of the following detail:
a) Where Dr A has worked and lived,
b) The names and number of Dr A’s children and when they were born,
c) The detail of Dr A’s personal relationship matters, and
d) The names and identifying particulars of Dr A’s family members
specified in the Charge.
That is ordered below again subject to the provision allowing publication of
conditions on Dr A’s practice.
[112] An application was also made for an order for suppression of the name of the
pharmacist who gave evidence and the name of his pharmacy. This was not
opposed by the practitioner and is ordered below. His involvement was simply
in the context of having been presented with the documents in question
including in relation to particular number 6. That particular has been found not
made out. His identity and that of the pharmacy need not further be publicised.
31
Result and orders
[113] The Charge against Dr A in all its particulars except particular 6 is found to be
made out as misconduct being malpractice and conduct bringing discredit to her
profession.
[114] Dr A is censured for that misconduct.
[115] Dr A is ordered fined the sum of $5,000.00.
[116] The following conditions are ordered to apply for three years from when Dr A
resumes or continues practice following the coming into effect of this decision
namely:
a) That Dr A is to undertake at her cost within 12 months a practical
education programme designed by the MCNZ medical advisers which
focuses on its statements Providing care to yourself and those close to
you and Good Prescribing Practice, professional boundaries and ethics
in medicine.
b) That for that period of three years she is required to advise her present
and any future employer of the Tribunal’s decision and its orders.
c) That Dr A is forthwith to advise the Health Committee of the MCNZ of
this decision, the Charge against her, and any background detail sought.
d) That for that period of three years Dr A is to comply, at her cost, with all
directions, recommendations and requirements of the Health Committee
of the MCNZ, including its requirements for proof of compliance.
e) That for that period of three years Dr A is not to write or be involved in
any way in the completion of a Medical Practitioner Supply Order.
[117] Dr A is to pay costs of $30,000.00 (being approximately 35% of total costs)
namely $15,000.00 each to the Tribunal and the PCC.
[118] The Tribunal recommends to the Health Committee of the MCNZ that it obtain
dispensing information from the Ministry of Health regularly to monitor Dr A’s
compliance with the publication statement Good Prescribing Practice and other
relevant Codes.
[119] The Tribunal orders that publication of the name, or any particulars of the
affairs, of Dr A in this matter be prohibited. It also confirms a like order having
been made in respect of the family members of Dr A named in the Charge. The
Tribunal exempts from that order the publication by the MCNZ on the public
register referring to this decision, and exempts the practitioner herself from
32
informing any prospective employer of the decision and identifying herself as
the practitioner, and the MCNZ from responding to any legitimate enquiry by
or on behalf of a hospital or other party considering employing or engaging the
practitioner from referring to the decision.
[120] The Tribunal orders that publication of the name, or any particulars of the affairs
of, the pharmacist, [the pharmacist], and the pharmacy, [ ] Pharmacy, be
prohibited. It further orders prohibiting publication of the following detail:
a) Where Dr A has worked and lived,
b) The names and number of Dr A’s children and when they were born,
c) The detail of Dr A’s personal relationship matters, and
d) The names and identifying particulars of Dr A’s family members
specified in the Charge.
That is ordered subject to the provision allowing publication of conditions on
Dr A’s practice.
[121] Pursuant to section 157 of the HPCA Act the Tribunal directs the Executive
Officer:
a) To publish this decision, and a summary, on the Tribunal’s website;
b) To request the MCNZ to publish either a summary of, or a reference to,
the Tribunal’s decision in its next available publication to members, in
either case including a reference to the Tribunal’s website so as to enable
interested parties to access the decision.
c) Publication is subject to the suppression orders above.
DATED at Auckland this 30th day of October 2019
................................................................
David M Carden
Chairperson
Health Practitioners Disciplinary Tribunal
33
SCHEDULE
Pursuant to section 81(2) and 91 of the Act, the Committee charges Dr A as
follows:
1. Between 8 May 2011 and 19 May 2017, Dr A wrote prescriptions in her
own name for the supply of prescription medicines and controlled drugs for
her own use including the drugs tramadol hydrochloride, zopiclone, codeine
phosphate, citalopram hydrobromide, lorazepam, mirtazapine, and
triazolam on the occasions set out at Appendix A;
and/or
2. Between 12 November 2015 and 14 December 2015, Dr A wrote
prescriptions for the supply of the drugs zopiclone, triazolam and codeine
phosphate for her own use in the names of family members, and knowing
that the named persons were not the intended recipient, specifically:
(a) Between 12 November 2015 and 21 November 2015, Dr A
prescribed zopiclone, codeine phosphate and triazolam for her own
use in the name of her [ ], as set out in Appendix B;
and/or
(b) On or about 14 December 2015, Dr A prescribed zopiclone and
codeine phosphate for her own use in the name of her [ ], as set out
at Appendix C;
and/or
3. Between 14 November 2016 and 30 March 2017, Dr A wrote and or
presented Medical Practitioner Supply Orders for codeine phosphate,
zopiclone, tramadol, triazolam and lorazepam, and obtained these drugs for
her own use, as set out in Appendix D;
and/or
4. Between 8 May 2011 and 19 May 2017 Dr A consumed the drugs as set out
in Appendix A, B, C and D without adequate independent medical
oversight.
and/or
5. Between 10 May 2017 and 30 June 2017, Dr A misled or attempted to
mislead her employer, [Dr E] and the Medical Council, by advising them
she had not picked up a prescription dispensed to her on 10 May 2017;
and/or
6. Between 14 November 2016 and 30 March 2017 Dr A misled or attempted
to mislead pharmacist [the pharmacist] by incorrectly leading him to believe
that the Medical Practitioner Supply Orders for the drugs listed in Appendix
D were for patients rather than for her own use;
and/or
7. Dr A’s conduct was in breach of her ethical obligations and accepted
standards of practice, including but not limited to:
(a) the Medical Council’s statement Good Medical Practice (April
2013, June 2016);
(b) the Medical Council’s statement Providing care to yourself and
those close to you (June 2007, June 2013, November 2016);
(c) the Medical Council’s statement Good Prescribing Practice (April
2010, November 2016) and
(d) the Medical Council’s statement Prescribing Drugs of Abuse
(April 2010, November 2016)
34
8. The conduct alleged above at paragraphs 1 to 7 amounts to professional
misconduct in that, either separately or cumulatively, it:
(a) amounts to malpractice or negligence in relation to her scope of
practice pursuant to section 100(1)(a) of the Act; and/or
(b) has brought or is likely to bring discredit to the profession,
pursuant to section 100(1)(b) of the Act.
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