Health Care Complaints Commission v A Medical Practitioner

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40533/00 MT 40029/98 POWELL JA STEIN JA ROLFE AJA

Friday, 1 June 2001 HEALTH CARE COMPLAINTS COMMISSION v A MEDICAL PRACTITIONER

The appellant lodged a complaint against the respondent under s 51(1) of the Medical Practice Act 1992, after an excessive dosage of Kapanol, a form of morphine, was prescribed and administered to an elderly patient who died soon after. The complaint, which included a number of parts, was referred to the Medical Tribunal where it was dismissed the complaint. The appellant appeals against the failure of the Tribunal to find that the practitioner engaged in unsatisfactory professional conduct. The Tribunal's dismissal of the complaint with respect to the allegation of professional misconduct is not challenged on appeal.

1. That the Medical Tribunal did not give adequate reasons for its decision to dismiss complaint 1(b) against the respondent. There was no examination of the quality of the prescribing error, and when such is undertaken, it is clear that the respondent demonstrated a lack of adequate care in the practice of medicine in relation to the patient.

2. The Medical Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. Character evidence may be relevant to credit and penalty, but the respondent's credit was not an issue..

3. Section 91(1)(b) of the Medical Practice Act 1992 contains a discretion which, in the appropriate circumstances, would enable the court to impose no penalty and make no order.

2. Respondent to pay the appellant's costs of the appeal but receive a certificate under the Suitor's Fund Act 1951 if otherwise entitled;

3. In so far as the order of the Tribunal dismissed complaint 1(b), that order be set aside;

4. In substitution, there be a finding that the respondent is guilty of unsatisfactory professional conduct under s 36 of the Medical Practice Act 1992 in relation to complaint 1(b); 5) No order be made in consequence of the finding in order 4 above;

6. The order for costs made by the Tribunal be set aside and, in lieu thereof, order that the appellant pay one-half of the respondent's costs before the tribunal. oOo IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL JA STEIN JA ROLFE AJA

Friday, 1 June 2001 HEALTH CARE COMPLAINTS COMMISSION v A MEDICAL PRACTITIONER JUDGMENT

2 STEIN JA: Introduction 3 The appellant, the Health Care Complaints Commission, lodged a complaint against a medical practitioner under s 51(1) of the Medical Practice Act 1992 (the Act). The complaint was referred to the Medical Tribunal. On 15 June 2000 the Tribunal handed down reasons for its determination. The Tribunal dismissed the complaint and ordered the Commission to pay the respondent's costs. The appellant appeals against the failure of the Tribunal to find that the practitioner engaged in unsatisfactory professional conduct. It does not challenge the Tribunal's finding that the respondent had not been guilty of professional misconduct under the Act. 4 Relevantly, an appeal can only be brought from a decision of the Tribunal with respect to a point of law (s 90 (1A)). 5 The complaint before the Tribunal concerned the circumstances of the treatment and ultimate death in August 1996 of a patient of the doctor. The complaint had four parts:

(c) Failure to administer Naloxone to reverse the effects of Kapanol, and

(d) Failure to arrange for the patient to be transferred to hospital on the day following the administration of the excessive dose of Kapanol. 6 The challenge before the Court of Appeal is limited to the manner in which the Tribunal dealt with the admitted mistake made by the respondent in his prescription of Kapanol for the patient. It is therefore confined to particular 1(b) of the complaint. 7 Of central importance to this appeal is the statutory definition of 'unsatisfactory professional conduct' in s 36(1) of the Act. It includes: (a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.

The facts 8 The respondent had treated the patient since 1985. In about 1990 the patient moved to a retirement village. She was born in 1919 and, at the time of the events with which we are concerned, the 8th and 9th August 1996, was 77 years of age. She was then suffering from a multitude of illnesses including hypertension, blindness, strokes, ischaemic heart disease, anxiety/depression, anaemia, renal failure and diabetes. In addition, she had had her left leg amputated and suffered from 'phantom leg syndrome'. In the nine years preceding her death on 12 August 1996 the patient had been hospitalised on numerous occasions. She received a large number of routine medications. 9 On 6 August 1996 the patient complained of phantom limb pain. She spoke to Sister Carter about it on 7 August. The severe pain persisted and on 8 August she requested the sister to get her 'anything for the pain'. As a result, the sister contacted the respondent and he attended at 1.30 pm that day. He examined the patient noting that she was in extreme pain. 10 The Tribunal recited that: … The Practitioner stated that he considered Pethidine or Endone but decided against these as she had a Pethidine allergy and an Endone intolerance as indicated on the Patient's clinical notes. The Practitioner decided to give Kapanol. His intended dose was 10mg.bd, but in error he wrote a prescription for 100mg. … 11 The prescription was made up and administered to the patient. On 9 August 1996 the respondent attended the retirement village and saw the patient who was 'very drowsy'. The practitioner instructed staff regarding the importance of adequate fluid intake and monitoring and told them to contact him if her condition deteriorated. 12 The patient's condition did deteriorate and on the morning of August 10, she was admitted to hospital. A provisional diagnosis was made of morphine overdose. As I have indicated, she died on 12 August. The cause of death was said to be bronchopneumonia due to morphine toxicity, with other significant conditions contributing to her death. 13 The Tribunal summarised the evidence of the witnesses. It mentioned the opinion of Dr Alfred Ledner. His opinion was that the administration of 100mg Kapanol (a morphine capsule) to a patient of the size, weight, frailty and prior medications, represented a substantial overdose. Indeed, this was not in issue in the proceedings. For example, Dr Henry, a clinical pharmacologist, saw it as greatly in excess of the appropriate dose. The practitioner accepted that the dose was a prescribing error, 10mg having been intended. The Tribunal recorded the evidence that Kapanol is supplied by the manufacturer in 20mg, 50mg and 100mg capsules and not in 10mg capsules. It also noted that unlike with scored tablets, which could readily be broken in half, it was not possible to divide the contents of the capsules into smaller doses.

14 The Tribunal then turned to the respondent's evidence. It observed that he attended the village on 8 August and found that his patient was in the worst condition that he had ever seen her. She was crying and dishevelled and clung to him begging for help with the pain. 15 The respondent thought about a Pethidine injection but rejected it because of her reported allergy to Pethidine. He rejected Endone because of her reported intolerance to it. He decided on a slow release oral morphine and chose Kapanol, with which he was familiar having used it on cancer patients and for chronic severe pain. 16 Having considered the age and weight of the patient, as well as her complex ailments, the practitioner decided on a dosage of 10mg. 17 The Tribunal found: … The Practitioner erroneously wrote 100mg on the prescription in lieu of the 10mg which he intended. In evidence the Practitioner said that in trying to understand himself how he had made the prescription error, he had concluded that he had in mind 100mg Pethidine which would have been his first choice had the Patient not been allergic to it. The Practitioner admits, and the Tribunal finds, that he prescribed a dose 10 times that which he intended, and one which represented an excessive dose for this particular patient. The Tribunal finds that the Practitioner was negligent in writing the prescription. 18 When the Tribunal turned to Particular 1(b) of the complaint, regarding the prescription of Kapanol in excess of recognised therapeutic standards of what is appropriate, it recorded that the particular was admitted by the respondent. Accordingly, the Tribunal found that the practitioner had prescribed Kapanol in excess of what was appropriate. It then turned to the question of whether this constituted professional misconduct. It stated its opinion that: … making an error in writing a prescription, in the circumstances which have been found by the Tribunal, may constitute an act of negligence. However, so characterised, it is one which falls at the bottom end of the scale of negligent acts, and may properly be described as ' mere negligence '. On the whole of the expert evidence, applying the test laid down in Qidwai v. Brown (1984) 1 NSWLR 100, the Practitioner clearly does not incur the strong reprobation of fellow practitioners of good repute and competence. Nor can his conduct be categorised as the type of conduct Kirby P. identified in Pillai v. Messiter (1989) 16 NSWLR 194. This was not a deliberate departure from accepted standards. Nor could the Practitioner's conduct be portrayed as indifference, or an abuse of the privileges which accompany registration as a medical practitioner. Having regard to the totality of the expert evidence, the complainant has not been able to establish an essential element of professional misconduct referred to in Dr. T.P. Davies, namely, strong disapproval by peers of reputable standing. 19 As I have said, this conclusion on professional misconduct is not challenged. 20 The Tribunal added that: … the only criticism which can be made of the Practitioner's conduct, is one careless act of prescribing an excessive dose of Kapanol. That one careless act, cannot, and in the opinion of the Tribunal, does not, constitute professional misconduct. 21 Turning from the issue of whether the respondent's conduct amounted to professional misconduct it said: … the Tribunal is cognisant of the fact that persons of the highest professional repute may be guilty of professional misconduct or unsatisfactory professional conduct. The behaviour complained of must be judged in isolation from past conduct, no matter how exemplary that past may be. 22 The Tribunal concluded: Whilst mere negligence, in particular a prescribing error, may constitute unsatisfactory professional conduct in certain circumstances, the Tribunal is satisfied that in the particular circumstances in which the Practitioner made his error , it does not demonstrate that he exhibited a lack of adequate knowledge, skill, judgment or care in the practice of medicine. (emphasis added)

Consideration on appeal 23 The appellant takes issue with the Tribunal in its finding that the respondent's mistake in prescribing 100g Kapanol, ten times what he intended, did not demonstrate such a lack of care by the practitioner in the practice of medicine as to constitute unsatisfactory professional conduct. 24 The process of reasoning whereby the Tribunal so concluded is not apparent from its reasons for decision. 25 Indeed, there appears to be a failure to reveal its reasoning with regard to a critical issue. This may, of course, constitute an error of law (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 - 281). 26 Indeed, the written submissions filed on behalf of the respondent concede that the Tribunal 'simply stated its conclusion on the critical question'. 27 One assumes that the Tribunal accepted the respondent's explanation that the mistake occurred because the doctor was considering a dosage of 100mg of Pethidine and that he made an inadvertent error in writing the prescription. 28 It seems to me, however, that what needs to occur is for there to be an examination of the quality of the error. With respect, the Tribunal does not appear to have made any real assessment of this. 29 The starting point is the erroneous prescription and the respondent's evidence about his mistake. 30 The prescription which the practitioner wrote, although to some extent indecipherable, is for 'Kapanol 100mg PRN'. 31 In the respondent's written statement to the Tribunal he said that he was aware that 20mg of Kapanol every 12 hours was the recommended dose. However, because of the patient's situation, he thought to give her 10mg but, mistakenly, wrote 100mg on the script. 32 In para 34 of the statement the respondent sets forth the note which he made later on that day or the next morning. It is as follows: 'Rx Kapanol 10mg stat. c 4th hourly PRN' 33 In the respondent's evidence in-chief before the Tribunal, he gave no explanation of how he intended to have the patient given a 10mg dose of Kapanol when he knew that a dose of this size was not available. 34 In cross-examination before the Tribunal the respondent agreed that Kapanol could not be taken in a 10mg dosage because the minimum capsule was 20mg. The respondent accepted that it was not feasible to cut it in half and that he had given no such instruction to staff. 35 In short, the respondent provided no explanation of how he understood that the patient would receive a 10mg dose of Kapanol, which he said he had intended to prescribe. 36 The respondent was also cross-examined about his note. He readily agreed that it contained not one but two errors. The first was that he had actually prescribed 100mg Kapanol when the note recorded 10mg. The second error was that the note referred to the Kapanol to be taken four hourly PRN, whereas that had not been intended. 37 With respect to this error, it may be seen that the note was different to both the script and the respondent's stated intention of the administration of the morphine. 38 Indeed, it may be noted that, at the inquest into the death of the patient, the transcript of which was before the Tribunal, the respondent said that he intended to write 20mg on the script. He later gave evidence that he had no idea why he intended putting 10mg on the script when he knew that there was no 10mg tablet. 39 When all of the relevant evidence of the respondent as to the prescribing error is considered, the extent of his confusion is plain. It was not a matter of his simply inadvertently writing '100' instead of '10'. There was clearly more to it. 40 In the context of finding that there was no unsatisfactory professional conduct in the prescribing error, the Tribunal referred to 'the particular circumstances in which the Practitioner made his error'. However, the Tribunal never referred to these circumstances, except in a global way which took no real account of the full circumstances in which the prescribing error was made. This meant that it failed to consider the quality of the error, which in my view was necessary. 41 When the circumstances in which the error was made are examined, it is readily apparent that the prescribing error was more than a mere mistake in writing '100' instead of '10'. 42 On the facts enumerated above, it seems to me that only one answer was possible. That is, that the respondent demonstrated a lack of adequate care in the practice of medicine in relation to the patient. Accordingly, it must follow that the respondent was guilty of unsatisfactory professional conduct. The Tribunal made an error in its categorisation of the conduct of the respondent as not constituting unsatisfactory professional conduct. 43 In these circumstances, it is hardly surprising that counsel for the respondent, Mr Bozic SC, does not contend that an error of law did not occur if, as I have found, only one finding is possible on the facts. He conceded that if on the facts only one conclusion was possible, namely a finding of unsatisfactory professional conduct, then the Tribunal misdirected itself and made an error of law. The finding of the Tribunal on complaint 1(b) should therefore be set-aside. 44 One other aspect of the appeal should be mentioned, although I do not see that it was necessarily material to the conclusion of the Tribunal on para 1(b) of the complaint. It concerns the use which may be made by the Tribunal of character evidence. 45 Early in its reasons for decision the Tribunal stated: The Tribunal is satisfied to a very high degree, that the practitioner is a man of good character. In arriving at that finding, the Tribunal places considerable weight upon the professional opinion of other members of the profession of standing within the community who have had regular professional contact with the practitioner. The Tribunal has taken the Practitioner's good character into account both in assessing the likelihood that he would be negligent and wanting in adequate knowledge, skill, judgment or care; and, in considering his credibility on matters in issue. (emphasis added) 46 It is not clear to what extent, or at all, that the Tribunal used the character evidence to come to the conclusion that complaint 1(b) was not established. Indeed, what it said with respect to past conduct, as quoted in para 20 above, may be indicative that it put character to one side. 47 Nonetheless, it is plain that the Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. It is difficult to see, given the admission of careless conduct by the respondent, (which was accepted by the Tribunal) what probative force such evidence would have. It had no relevance to the consequences which might flow from the inadvertent error. It could, of course, be relevant to credit. But the mistake made by the practitioner involved no issue of credibility. The character evidence was, by its very nature, relevant to penalty, should the Tribunal get to that issue.

Conclusion 48 In my opinion, the appeal should be upheld and a finding be substituted of unsatisfactory professional conduct with regard to para 1(b) of the complaint. The question remains as to what penalty should be imposed. The appellant suggests a reprimand. The respondent submits that no order should be made. The powers of the Tribunal if it finds a complaint to be proved are set forth in ss 61 to 64 of the Act. 49 They do not expressly include making no order. However, the powers of the court on appeal (s 91(1)(b)) include the making of: such order as it thinks proper having regard to the merits of the case and the public welfare, … 50 Counsel for the Commission, Mr Basten QC, accepts that this provision probably entitles the court to make no order if it thinks proper, having regard to the merits and to the public welfare. Counsel for the respondent does not dispute this approach. 51 In my view, counsel were correct to so submit. Section 91(1)(b) of the Act contains a clear discretion which would enable the court, in an appropriate case, having regard to the merits and to the public welfare, to impose no penalty and make no order. In this case the good character of the respondent and the passage of time since August 1996 make it appropriate to make a finding of unsatisfactory professional conduct but make no further order by way of penalty. 52 In terms of costs, the order made by the Tribunal should be set aside. Mr Basten submits that an appropriate order to be substituted would be that the appellant pay one-half of the costs of the respondent at the Tribunal. This seems to be perfectly appropriate. Proposed Orders 53 1. Appeal allowed.

Respondent to pay the appellant's costs of the appeal but receive a certificate under the Suitor's Fund Act 1951 if otherwise entitled.

In so far as the order of the Tribunal dismissed complaint 1(b), that order be set aside.

In substitution, there be a finding that the respondent is guilty of unsatisfactory professional conduct under s 36 of the Medical Practice Act 1992 in relation to complaint 1(b).

No order be made in consequence of the finding in order 4 above.

The order for costs made by the Tribunal be set aside and, in lieu thereof, order that the appellant pay one-half of the respondent's costs before the Tribunal. 54 ROLFE AJA: I have had the advantage of reading in draft form the reasons and proposed orders of Stein JA. I agree with them, but I wish to add some short observations of my own. 55 The facts and circumstances to which his Honour has referred show how sad a case this is for the former patient, her relatives and the medical practitioner. I have not the slightest doubt that the medical practitioner was endeavouring to do his very best for his long time patient under circumstances which were obviously greatly distressing to him and placed him in an unenviable position. Those factors, together with his substantial and long term contribution to the well being of his patients generally and his assistance in furthering medical education in the region in which he practises, make the ultimate legal conclusion to which I have come unattractive. 56 However, for the overall good and protection of patients, the Medical Practice Act 1992 has laid down standards with which medical practitioners must comply. The standards, no doubt, recognised that medical practitioners will, probably frequently, work under conditions of pressure, stress and urgency of the type this medical practitioner encountered in this case. It is against such a background, at least in part, that the standards for "unsatisfactory professional conduct" have been given statutory formulation. It is with that demanding standard that medical practitioners must comply. 57 Whilst I have given my most careful consideration to the views of the Tribunal to which Stein JA refers, I have come to the conclusion that his Honour is correct because of the Tribunal's failure to examine all the matters giving rise to "the quality of the error". It is this aggregation of the number of matters, to which his Honour has referred, which brings about the lack of care in this case.

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