The practitioner was educated to a high standard in his high school, where he became a prefect. He thereafter graduated in 1988 from Monash University having been awarded degrees of Bachelor of Medicine and Bachelor of Surgery (Hons) and became registered in that year as a medical practitioner. The practitioner claims that he came first in his examinations to qualify as a surgeon, but no evidence has been produced to verify this assertion. The practitioner qualified as a Fellow of the Royal Australian College of Surgeons in 1998 and became an ear nose and throat, head and neck surgeon. The practitioner had general and specialist registration from 1 July 2010.
The evidentiary certificate issued by the Australian Health Practitioner Regulation Agency pursuant to section 244 of the National Law, records that the practitioner has held registration as a general and specialist from 1 July 2010 until it was suspended on 2 May 2017. The practitioner was again registered from 26 June 2017 until he surrendered his registration on 20 October 2017.
The section 244A evidentiary certificate issued by the Medical Council of New South Wales, establishes that the practitioner was granted general registration as a medical practitioner in New South Wales on 7 January 1999 and remained so registered until 2 October 2008. On 3 October 2008, the NSW Medical Board suspended the practitioner's registration pursuant to section 66 (1)(a) of the now repealed Medical Practice Act 1992 for a period of 4 weeks from 3 October 2008 to 2 November 2008 resulting from his pethidine addiction.
Thereafter on 3 November 2008, the NSW Medical Board terminated the suspension of the practitioner pursuant to section 66A of the Medical Practice Act 1992 (now repealed) and pursuant to section 66(1)(b) of such Act, imposed conditions upon his practice. Such conditions, inter alia, prohibited the practitioner from prescribing, possessing, supplying, administering handling or dispensing any drug of addiction (drugs under Schedule 8 and Schedule 4D of the New South Wales poisons list); not to prescribe for self-medication; nor to self-administer any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act 1985. Further, the practitioner was required to attend for psychiatric review on a 6 monthly basis before a Board nominated psychiatrist and to attend reviews by the Medical Board. From 11 May 2010 until 30 June 2010, the practitioner was required to undergo random urine testing.
Subsequently the conditions were varied in minor respects. However, stringent conditions were imposed of a similar nature by the Medical Tribunal on 8 May 2012. Such conditions were continued until October 2017, but between 2012 and 2017 additional conditions were added.
Conditions were imposed as a result of findings made in the proceedings Health Care Complaints Commission v Dr Roland Von Marburg [2012] NSWMCA 5. The findings of the Tribunal established that the practitioner had self-administered pethidine and had administered pethidine to patients. The Tribunal also observed that the practitioner had been placed on the impaired doctor's rehabilitation program for 3½ years prior to the matter coming before that Tribunal.
In 2013 further complaints were made against the practitioner and conditions were imposed on the practitioner's registration. Subsequently such conditions were altered as a result of an appeal: see Dr Marburg v Medical Council of New South Wales [2015] NSWCATOD 87.
From 26 March 2015 until 10 August 2015 the practitioner was prohibited from performing any surgical procedures as a result of findings made by the Medical Council of New South Wales. The practitioner appealed such orders. As a result, the practitioner was restricted from performing any ear surgery except for very minor procedures.
On 12 May 2016 the complaint was filed in respect of proceedings 2016/00378691.
On 13 January 2017 a complaint was filed and became proceedings 2017/00014882.
On 20 June 2018 the applicant filed a complaint against the practitioner which has led to proceedings 2018/0019110. An amended complaint was filed on 10 May 2019.
[2]
Application of principles
Proceedings 2018/0019110: as referred to in the reasons for decision, the Tribunal has found that the practitioner is suffering from an impairment within the meaning of that term contained in section 5 of the National Law. It is also found that the practitioner purportedly prescribed codeine and temazepam to certain patients with whom he had a special relationship between April 2012 and 2016 but the practitioner conceded that most of the medication was for his own personal use. In that period 8,940 codeine tablets and 2,925 temazepam tablets were prescribed by the practitioner.
The Tribunal has found that the practitioner misled the applicant in respect of the persons who were allegedly treating him in respect of his requirement to consult a counsellor for his drug consumption issues. Further, he failed to comply with a condition on his registration which required him to consult a drug counsellor. The Tribunal has found that the practitioner did not keep records of patients between April 2012 and 2014; and, contrary to his conditions, he was effectively self-prescribing.
The Tribunal has found that such conduct, which, except for the impairment issue, individually constitutes unsatisfactory professional conduct to such a degree as to constitute professional misconduct in respect of those complaints (except for impairment). With respect to the applicant's impairment, further comment will be made hereunder.
Proceedings 2017/00014882: in these proceedings the Tribunal has found that the practitioner undertook surgery when the need for such surgery was not indicated. Such surgery was effected on more than one patient, some of whom suffered serious consequences, while others were put unnecessarily at risk of serious consequences.
Further, the practitioner created a record which he sent to a general practitioner of one patient which was false in respect of the finding that a small cholesteatoma had been found during surgery.
The Tribunal has found that the practitioner failed to keep accurate records of patients, failed to produce records when required; created false reports and undertook surgical procedures which only compounded a disability of several patients.
The Tribunal has not been asked to find that the influence of the practitioner's drug consumption impaired his ability in the manner in which has been found by the Tribunal in the proceedings before it. However, the Tribunal records its strong suspicion that it has been the practitioner's consumption of drugs which has caused him to depart from the accepted practices of his speciality. The Tribunal harbours such suspicion because it is unable to discover, from the evidence, any other reason for such significant departures from the professional standards expected of an ear, nose and throat surgeon.
The Tribunal is satisfied that in respect of individual findings as set out in the Tribunal's decision, the conduct amounts to unsatisfactory professional conduct. When considered together, the individual findings constitute professional misconduct.
Proceedings 16/0037861: these proceedings relate essentially to the conduct of procedures, and findings by the Tribunal that the practitioner falsely created accounts sent to Albury Wodonga Hospital, and has made unjustified claims on Medicare.
[3]
Summary of conduct
The practitioner's misconduct is not confined to merely one aspect of his practice. The Tribunal has found that the practitioner has engaged in 18 proven instances of clinical incompetence, such as performing surgery when no surgical intervention was indicated; creating false clinical records, concealing the fact that he had damaged one patient; failing to obtain informed consent from patients before performing surgery; failing to provide adequate advice to patients following surgery; preparing false reports for the patient's general practitioner, which have concealed the malpractice of the practitioner and have portrayed the surgical procedure as being successful when the contrary was the case; preparing false letters, backdated several years, so as to give the impression that he had taken all appropriate steps in reporting to a general practitioner; making false declarations for the purpose of admission of patients to the Aubrey-Wodonga hospital; stating that he had consulted with patients when in fact he had never seen them; and making false claims on Medicare which were unjustified. Further, the practitioner was dishonest in his dealings with the Medical Council and the applicant. The practitioner blatantly contravened the conditions on his registration in regard to attending a counsellor and self-prescribing.
Accordingly it is not only medical malpractice in issue in these proceedings: there is dishonesty and deception at a professional level which the Tribunal considers is egregious conduct. The practitioner has shown no remorse and negligible insight into his conduct.
[4]
Protective orders
Counsel for the practitioner made extensive submissions upon the question of the nature and extent of the protective orders which should be imposed. Counsel submitted that the purpose of cancellation would serve little utility, in view of the fact that the practitioner had ceased to practise in October 2017 and had stated that he had no intention of resuming practice. Counsel also submitted that, if the protection of the public was to be served, there was no utility in providing a lengthy period during which the practitioner could apply for re-registration.
The Tribunal has considered such submissions. However it is mindful that, by its decision on the implementation of protective orders, even if they are orders which may have little effect, they will, at the very least, serve as a reminder to other practitioners of the necessity to observe the high standards required of professional practice. Further, the length of any period in which a practitioner shall be prohibited from re-applying, indicates the gravity with which the Tribunal has considered the conduct which is come before it.
The Tribunal considers that in respect of the finding in the three proceedings, each justifies an order that, had the practitioner been registered, his registration would have been cancelled and that the practitioner be prohibited from making any application re-registration for a period of eight years. Further, any such application should be made to the Tribunal as the appropriate review body for any review of such orders under section 163 of the National Law. Such sanction does not apply in respect of the finding of impairment.
The Tribunal finds that with respect to the practitioner's impairment, the evidence establishes that he has been addicted, initially to pethidine, and thereafter to codeine and temazepam. The evidence shows that the practitioner had a long standing history of relapses, and that the risk of relapse is high. The fact that the practitioner failed to abide by the conditions imposed upon him to undergo counselling and testing suggests that it may be difficult in the future for the practitioner to abide by any conditions. The Tribunal is gravely concerned that, in view of this history, should the practitioner make application for re-registration, the public could be placed at risk. This will be a matter for the reviewing body namely the Tribunal if and when such application is made.
The Tribunal notes again that the practitioner states that he has no intention of seeking re-registration. The Tribunal does not consider it appropriate to impose further conditions in respect of the impairment, as it may do under section 139(G) of the National Law, as to do so may impede any subsequent requirements by any reviewing authority.
[5]
Costs
The applicant applied for an order that the practitioner pay its costs of all three proceedings, under Schedule 5D, cl13 of the National Law. Such application is opposed on the ground that the practitioner, in April 2019 sought to terminate the proceedings. It is necessary to consider the chronological history hereunder. The Tribunal exercises its discretion to award costs, based upon the material placed before it: see Williams v Lewer (1974) 2 NSWLR 91 at 95.
All of these proceedings were set down for hearing in February 2018. The practitioner then made an application for a stay of proceedings on the ground of ill-health. The application was granted. A directions hearing took place on 27 February 2019. Directions were made requiring the applicant to file and serve any further material by 25 March 2019; the practitioner to file and serve any further material in reply by 22 April 2019; and the applicant to file and serve any material in reply by 6 May 2019.
In April 2019 the Tribunal wrote to the parties, emphasising that three weeks had been set aside to the hearing and that significant costs would be incurred. The Tribunal suggested to the parties that, in the interest of saving costs, they might confer to determine whether any issues could be resolved.
Meanwhile, the practitioner did not comply with the requirement to file and serve any evidence. In fact the practitioner was four weeks late in the provision of such material.
The practitioner made an urgent application on Friday 5 April 2019 seeking orders that the proceedings be terminated without a hearing. Such application came on for directions at 9am on Monday, 8 April 2019 when the basis of the application was outlined. In summary, it was contended that the practitioner was no longer practising; had stated his intent not to resume practice; that the costs of the hearing could be avoided if the hearing were terminated without any findings being made against the practitioner. The Tribunal declined the application.
On 18 April 2019 the practitioner filed and served his Reply and reply statement in proceedings 2018. The practitioner stated that he could not admit that he had an impairment which affected his capacity to practise. By letter dated 18th of April 2019, Avant Law which represented the practitioner in respect of the 2017 and 2018 wrote to the applicant suggesting that the hearing be truncated by dispensing with a full enquiry. There was no indication at that stage that the practitioner would not give evidence although it was stated that he would dispense with his right to cross-examine witnesses. In substance the request appeared to be a proposal that there would be no oral evidence and no cross examination.
At that stage, in respect of the 2016 complaint the practitioner made denials or did not admit to the 11 complaints contained in the 2016 application and denied that he was guilty of unsatisfactory professional conduct. In respect of the 2017 proceedings, the practitioner denied 11 of the 12 complaints and partially admitted one complaint. In respect of the 2018 complaint, the practitioner admitted that he had suffered from a "dependence on medication" in the past; and that he had prescribed opioid medication ostensibly for patients when it was mostly intended for self use. He did not admit that he was currently impaired. The applicant denied most of the other complaints.
In view of the clear uncertainty, the applicant continued to prepare by filing statements of former patients upon which the complaints were based which had been prepared in January and which had been completed between January and March. Three other statements (for example, of Dr English dated 17th of April 2019; Ms Edwards dated 23rd of April 2019) were filed in April 2019. In addition, because the practitioner did not admit that he had an impairment, but had filed no expert evidence to verify such fact, the applicant considered it essential to obtain an updated report of Dr Glen Smith. Such report was dated 8 May 2019.
Approximately two days before the hearing was due to commence, the practitioner advised the applicant and the Tribunal that the he did not wish to give any evidence in the proceedings; nor did he wish to cross examine any of the witnesses relied upon by the HCCC. However, the denials or "do not admit" responses remained in respect of each proceeding.
[6]
Practitioner's submissions
The practitioner states that he endeavoured to shorten the proceedings by adopting his procedure of not testifying and not seeking to call any evidence, nor to cross-examine the witnesses of the applicant. The practitioner maintains that he followed this course in an attempt to reduce the hearing time. The practitioner also relies upon the fact that he re-agitated, at the commencement of the hearing, and at the commencement of the 2016 proceedings, the application that the proceedings be terminated. For these reasons, the practitioner submitted that his conduct was reasonable and that he should not have to submit to an order for costs.
The practitioner also submits that he is impecunious, and in support, provided a letter from his accountant dated 28 May 2019 which advised that the practitioner "has no assets of any significance in his name".
[7]
Finding
With regard to the procedural aspects of the submission, the Tribunal observes that, in each case, the practitioner did not resile from his denials nor resile from matters which he declined to admit. Accordingly it was necessary for the applicant to address every complaint, and every particular of each complaint. The applicant was obliged to follow such course irrespective of the steps which the practitioner claimed were reasonable. In doing so the Tribunal has been engaged for approximately 13 days of hearing time. Had the practitioner conceded many of the allegations contained in the particulars, rather than putting the applicant to strict proof of each particular, it may have saved a considerable amount of time and would have justified, in part, opposition to the application for costs.
In Health Care Complaints Commission v Philipiah [2013] NSWCA 342, the NSW Court of Appeal stated that the usual rule that cost should follow the event applied in matters such as that which is now before the Tribunal. Such principle had already been established: see Ohn v Walton (1995) 36 NSWLR 77, where the court, considering the Medical Practitioner's Regulations, regulation 27 (1) which previously prevailed, found that the Medical Tribunal had discretion to award costs similar to those applied by a court in similar circumstances, so that costs should follow the event unless the circumstances of the case require the exercise of discretion not to do so. Other examples are contained in NSW Medical Board v Dinakar [2009] NSWMT 8; HCCC v Dinakar [2009] NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. As Dawson J observed in Latoudis v Casey (1990) 170 CLR 534 at 558, the principles to be applied in the exercise of the discretion should be identified as far as possible so that like cases will be decided in a like manner. It should also be observed that the onus is on the losing party to establish any basis for a departure from the usual rule: see Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. The general presumption will be displaced only where there has been some disentitling conduct of the successful party: see Arian v Nguyen [2001] NSWCA 5 at [36].
Prima facie, since the HCCC has succeeded in establishing that each of its complaints are proven in respect of the 2016 and 2018 proceedings, there is no reason why the practitioner should not bear the costs of the applicant. Had it been shown, for example, that costs were incurred which were unnecessary, this factor could result in special consideration: see Lucire v Health Care Complaints Commission (No 2) (2011) NSWCA 182 at [48] - [52]. The Tribunal is not satisfied that any disentitling conduct has occurred to deprive the applicant of its costs in view of the ambivalent stance taken by the practitioner in each proceeding.
With regard to the costs in respect of the 2017 proceedings (2017/00014882), only one of these complaints and very few particulars of complaints were not proved. Accordingly the Tribunal considers that in respect of the 2017 proceedings, the practitioner should be ordered to pay 90% of the costs of the applicant. The Tribunal emphasises that costs are compensatory, namely to compensate the successful party. They are not intended to be punitive of the unsuccessful party: see Latoudis v Casey at 543 where Mason CJ said that costs are not "awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings."
The practitioner claims that he is impecunious, and for this reason the making of an order for costs would serve no purpose. It has been held that impecuniosity of an unsuccessful party is not a sufficient reason for a court or Tribunal declining to make an order for costs in favour of a successful party: Young v Cooke [2018] NSWSC 588; Preston v Harbour Pacific Underwriting Pty Ltd [2007] NSWCA 247 at [18]. For this reason, this submission is rejected.
[8]
Orders
The Tribunal orders that in proceeding 2018/00191190; proceeding 2016/00378691 and in proceeding 2017/00014882, the following orders be made:
1. Order that if the practitioner was still registered: -
1. pursuant to section 149C(4)(a) of the National Law if the practitioner was still registered his registration would have been cancelled;
2. pursuant to section 149C(4)(b) the practitioner be disqualified from being registered as a medical practitioner for 8 years;
3. pursuant to section 149C(4)(c) of the National Law the National Board record that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board;
4. pursuant to section 149C(7) of the National Law order that the practitioner cannot seek a review of the orders made by the Tribunal for a period of 8 years;
5. pursuant to section 163 of the National Law the Tribunal is the appropriate review body for any review of these orders;
1. The practitioner pay the costs of the applicant of proceedings 2018/00191190 and proceedings 2016/00378691.
2. The practitioner pay 90% of the costs of the applicant of proceedings 2017/00014882.
3. The publication of the names of any of the patients referred to in this decision be prohibited.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 June 2019
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Von Marburg
Cases Cited (25)
Roberts v Medical Council of New South Wales [2015] NSWCATOD 35
Spicer v New South Wales Medical Board (unreported): NSW Court of Appeal, Thursday 19/02/1981
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
Williams v Lewer (1974) 2 NSWLR 91
Young v Cooke [2018] NSWSC 588
Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279
Category: Consequential orders (other than Costs)
Parties: Health Care Complaints Commission (Applicant)
Roland Von Marburg (Respondent)
Representation: Counsel:
K Stern SC and S Maybury (Applicant)
R Mathur (Respondent in proceedings number 2017/00014882 and 2018/00191190)
Respondent in person (by telephone) in proceedings 16/00378691
Purpose of proceedings
Section 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration", when considering an application to practice medicine. It is a fundamental requirement of the objective of section 3A that the practitioner must be considered to be a "fit and proper person" to practise. A practitioner must satisfy the Tribunal that he is a fit and proper person to practise: see Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [65] where Toohey and Gaudon JJ said that conduct "may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question". It has also been held that "conduct may show a defective character incompatible with a membership of a self-respecting profession: see Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 (2 July 1957).
The purpose of imposing protective orders is to protect the public; it is not intended to punish a practitioner who has been found guilty of unsatisfactory professional conduct or professional misconduct: see Health Care Complaints Commission v Litchfield [1997] NSWLR 264. However it has also been recognised that where conduct is regarded as sufficiently serious, deregistration or suspension may involve an element of punishment: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
It has also been recognised that there is no fixed boundary between unsatisfactory professional conduct and professional misconduct. Professional misconduct would arise, for example, where conduct of the practitioner is proven to be so gross that it can be immediately classified as professional misconduct. However, there are other instances where unsatisfactory professional conduct may, because of its gravity, degree of its cumulative effect, constitute professional misconduct. Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 observed in paragraphs [18] - [20] such considerations and stated inter alia:
"There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgement [sic] made by the Tribunal."
Applications for Termination
During the hearing of these proceedings three applications were made by or on behalf of the practitioner that each proceeding be terminated without a hearing. Each application was based upon the fact that the practitioner had ceased to practise as a medical practitioner and the fact that he had provided statutory declarations which declared his intent not to seek re-registration as a practitioner. Accordingly the utility of the continuation of the proceedings and the issue of unnecessary costs being incurred was put in issue.
The Tribunal declined to accede to each application. The Tribunal considered that each Complaint required its consideration by the Tribunal in the interests of maintaining the appropriate standards for the profession and in publicly stating its determination of the issues. The Tribunal considered that the observations made in Health Care Complaints Commission v Echano [2018] NSWCATOD 30 at [57] have application in the present circumstances, namely:
The purpose of disciplinary orders is protective: see generally, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637. Orders operate as an indication to the profession generally of the sanctions that will be visited on professional misconduct of the kind identified in a particular case. They play a role in educating doctors and the public generally as to the minimum, expected standards of practice. They serve to protect the public in removing from the profession doctors whose conduct has been dangerous, and placed at risk the safety and welfare of patients. The protection of the health and safety of the public is a paramount consideration: s 3A, National Law. Appropriate disciplinary orders remind other members of the profession of the public interest in the maintenance of high professional standards, emphasise the unacceptability of the particular conduct and serve to maintain confidence in the high standards of the relevant profession: NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA. See also Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (with whom Basten and Emmett JJA agreed).
Similar observations were made by the NSW Court of Appeal (Basten, Emmett and Meagher JJA) in Health Care Complaints Commission v Do [2014] NSWCA 307 at [33]: where Meagher JA said:
"The factors which the Tribunal is required to consider in the exercise of its protective jurisdiction are to be found in the terms of the Law. They may be stated expressly authorised by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 - 40 (Mason J)."
At [35], Meagher JA said:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal is required to ensure the maintenance of ethical standards by medical practitioners: see Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 where the Tribunal commented that it was necessary for the Tribunal to consider whether it had confidence that the practitioner would uphold and observe "the high standards of moral rectitude required of a medical practitioner". The disposal of these proceedings by a public hearing is not carried out with any vindictive motive: rather the Tribunal is merely fulfilling its statutory duty. A decision by the Tribunal in each proceeding will serve the important function of indicating to the profession, and the public, the requisite standards.
Where the use of, or unlawful prescription of drugs is an issue, as in the present proceedings no 2018/00191190, further considerations apply. In Spicer v New South Wales Medical Board (unreported): NSW Court of Appeal, Thursday 19/02/1981), hope JA with whom Reynolds and Hutley JJA agreed, observed at paragraphs 5, 6:
"In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner".
The Tribunal also repeats the findings referred to in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] that:
However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.
In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA at paragraphs 20 to 21 considered the exercise of powers by Tribunals to make protective orders and observed:
Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
. . .
21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
It is accepted, as stated previously in these reasons, that it is not the function of the Tribunal in applying protective orders to penalise a medical practitioner; rather, the sole object is to protect the public by means of such sanctions. The imposition of such sanctions arises from what is perceived by the Tribunal to be necessary in the public interest.