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

2

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

3

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.

4

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

5

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).

6

[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.”

7

[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”.

8

[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.

9

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.

10

“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

11

“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

12

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

13

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

14

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.

15

[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.

16

[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

17

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.