Charge

On 28 September 2021 by audio visual link the Health Practitioner’s Disciplinary Tribunal (the Tribunal) heard an amended charge laid by the Professional Conduct Committee (PCC) appointed by the Medical Council of New Zealand (MCNZ), against Dr M, registered medical practitioner, (the doctor).

The charge alleged that:

Self-prescribing and prescribing for self in name of others

1. Between 28 February 2013 and 1 August 2017, Dr [M] wrote prescriptions for the supply of drugs for his own use in the names of family members, and knowing that the named persons were not the intended recipients, specifically:

     a.  Between 28 February 2013 and 23 February 2017, Dr [M] prescribed tramadol for his own use in the

          name of his wife, Mrs [M], as set out in Appendix A; and/or

    b.  Between 18 May 2016 and 1 August 2017, Dr [M] prescribed tramadol, omeprazole, ibuprofen, and

         paracetamol for his own use in the name of his son, Mr [PM], as set out in Appendix B; and/or

3.  Between 28 February 2013 and 1 August 2017, Dr [M] consumed the drugs as set out in Appendix A and / or Appendix B without adequate independent medical oversight; and /or

4.  Dr [M]’s prescribing as set out in Appendix A and / or Appendix B was contrary to an agreement between Dr [M] and the Council’s Health Committee, dated 1 October 2012, that he would not self-prescribe medicines or drugs and / or that he would maintain total abstinence from mood changing drugs (including recreational drugs and other abusable substances, and medications that are not prescribed for him by his treatment team); and/or

Misleading the Council

5.  Between 11 October 2017 and 17 July 2019, Dr [M] misled or attempted to mislead the Council, by incorrectly leading it to believe that the prescriptions for tramadol listed in Appendix A were for Mrs [M] rather than for his own use; and/or

6.  Between 11 October 2017 and 17 July 2019, Dr [M] misled or attempted to mislead the Council by incorrectly leading it to believe that the prescriptions for the drugs listed in Appendix B were for Mr [PM] rather than for his own use; and/or

Inappropriate prescribing to family members

7.  Between 23 September 2008 and 5 April 2017, Dr [M] wrote prescriptions for Mrs [M] for the supply of drugs, including psychotropic medications and drugs of dependence, as set out in Appendix D; and/or

8.  Between 18 May 2016 and 1 August 2017, Dr [M] wrote prescriptions for Mr [PM] for the supply of tramadol, ibuprofen, omeprazole, and paracetamol, as set out in Appendix B; and/or

9.  Dr [M]’s conduct was in breach of his ethical obligations and accepted standards of practice, including but not limited to:

     a.  the Medical Council’s statement Good Medical Practice (June 2008, April 2013, June 2016, December 2016);

     b.  the Medical Council’s statement Providing care to yourself and those close to you (June 2007, June 2013, November 2016); and

     c.  the Medical Council’s statement Good Prescribing Practice (April 2010, November 2016).

The conduct alleged above at paragraphs 1 and 3 to 9 amounts to professional misconduct in that, either separately or cumulatively, it:

     a.  amounts to malpractice or negligence in relation to his 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.

The doctor accepted the charge and that it reached the threshold for professional misconduct.  The hearing proceeded on the basis of an agreed summary of facts.

Background

Between 1997 and 2006, the doctor was monitored by the MCNZ for health issues including alcohol dependence and opioid use.  His file was reactivated in 2008 following an alcohol offence.  The doctor was subject to a voluntary agreement with the Health Committee of the MCNZ relating to maintain total abstinence from alcohol and mood changing drugs. He was also required to inform the health case manager of any changes to the treatment team and any change in his treatment provider if needed.

In 2009, the doctor suffered a significant back injury which cause chronic pain and was prescribed Tramadol.  The Health Committee was aware of this.

In 2017 the MCNZ was notified by the Ministry of Health Audit and Compliance Team of the doctor’s self-prescribing and prescribing to family members.  The doctor told the MCNZ that he had renewed prescriptions for his wife and that the Tramadol prescriptions in the name of his son was because of the son’s musculoskeletal pain.

During the PCC’s investigation in July 2019, the Doctor made certain admissions during an interview with the PCC, admitting that the prescriptions for his wife for Tramadol and those he wrote for his son, were for his own use. 

As part of the evidence filed before the Tribunal was a copy of part of the transcript of that meeting which the PCC wished to rely on to prove the charge subsequently laid.

Prior to the Tribunal setting down a hearing of the charge a separately constituted Tribunal was called to consider an objection from the doctor that the transcript of the meeting was inadmissible.  The separate Tribunal considered the transcript to be inadmissible (1106/Med20/482P dated 3 September 2020).

The PCC lodged an appeal to the High Court and alternatively through judicial review proceedings against the Tribunal’s ruling.  The High Court declared that the Tribunal’s ruling was erroneous in law and quashed that decision (PCC v Dr D [2021] NZHC 2249, 30 August 2021).  The Court also declared that the PCC did have right of appeal on the interlocutory decision.

At the commencement of the hearing, the PCC withdrew particular 2 of the charge.

Finding

The Tribunal found the charge established.  Each of the particulars 1, 3, 4, 5, 6, 7, 8, 9 and 10 separately amounted to professional misconduct under sections 100(1)(a) and (b) of the Health Practitioners Competence and Assurance Act 2003.  The Tribunal found the conduct set out in the particulars a serious departure from accepted professional standards and warranted disciplinary sanction. 

Penalty

The Tribunal ordered:

• censure;
• conditions on practice should the doctor consider returning to medical practice;
• a fine of $7,500;
• 40% contribution to of the costs of the PCC and the Tribunal amounting to $33,300.

The Tribunal directed publication of the decision and a summary.