Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

A Complaints Assessment Committee (CAC) charged Dr K with professional misconduct. The charge alleged that between October 2003 and April 2004 Dr K forged on a number of prescriptions the signature of another medical practitioner in order to enable him to obtain pethidine for his own use from a pharmacist.

Background:

In 2003 Dr K approached another practitioner (Dr A) at the clinic where he rented a room and asked her to sign a prescription for pethidine for a patient. Dr A signed the prescription and continued to do so on a number of occasions until she was warned by a pharmacist that it was not wise for her to sign prescriptions for Dr K’s patients.

In April 2004 a pharmacist contacted Dr A and showed her a prescription which had purportedly been signed by her. She realised immediately that her signature on the prescription was a forgery. A number of other prescriptions were examined and it became apparent that Dr A’s signature had been forged on several occasions.

Dr K subsequently admitted forging Dr A’s signature four times.

Dr K had a narcotic (opioid) dependence since 1992 and has been monitored by the Health Committee of the Medical Council (the Health Committee) since that time. Dr K has undergone various treatment programmes for his addiction since 1992. In the past Dr K had not used opiates for several years. He suffered a relapse in April 2003 which was discovered when his forging of prescriptions came to light.

After it was discovered Dr K forged the prescriptions he voluntarily withdrew from practice for about two months. He returned to work in July 2004 subject to a number of conditions and undertakings given to the Medical Council. Mid way though 2004 Dr K attended two residential treatment programmes at the Capri Trust in Auckland.

Dr K is following a comprehensive ongoing care programme and the Health Committee is satisfied Dr K is fit to practise medicine

Finding:

Dr K pleaded guilty. The Tribunal unanimously found Dr K guilty of professional misconduct.

The Tribunal was of the view that Dr K’s actions did constitute professional misconduct for the following reasons:

• forging a signature of a colleague to obtain pethidine for his own use was a very serious departure from the standards expected of a medical practitioner;
• forging a person’s signature is a criminal offence and in the circumstances of this case his conduct was also deceitful and a significant breach of trust; and
• the Tribunal was satisfied the medical profession and community rightly place high expectations on members of the medical profession to act honestly and ethically.

The Tribunal considered Dr K’s actions justified disciplinary sanction for the purpose of maintaining professional standards and punishing Dr K.

Penalty:

Suspension

The Tribunal gave careful consideration to suspending Dr K. One member of the Tribunal believed Dr K should be suspended and to this extent disagreed with the decision of the majority of the Tribunal.

The reasons one Tribunal member believed Dr K should be suspended and the other Tribunal members considered ordering he be suspended were:

• Dr K’s offending was very serious and reflected adversely not only upon him, but the medical profession as a whole; and
• a psychiatrist undertook a thorough assessment of Dr K. He advised Dr K is vulnerable to a relapse. The assessment caused concern to the Tribunal as one of the functions of the Tribunal is to protect the public. This responsibility is compromised if Dr K is allowed to continue practising and suffers a relapse.

The reasons why the majority decided not to suspend Dr K were:

• this was the first time he had been charged with a disciplinary offence;
• the offending was caused by his addiction;
• he fully cooperated with the Medical Council and the Tribunal;
• he has taken responsible steps to obtain treatment for his health problems;
• he will continue to be monitored by the Health Committee; and
• the Health Committee believes he is fit to practise medicine.

Conditions

The Tribunal ordered Dr K to practise under the following 17 conditions for the next three years.

1. Dr K must practise under the oversight of a vocationally registered medical practitioner who practises pain medicine.
2. He should not prescribe Class B controlled drugs.
3. He is not to have access to Class B controlled drugs, medicine pads or forms.
4. He is to maintain a drugs register which must be available for independent audit at all times.
5. He must not take possession of any controlled drugs or prescriptions for controlled drugs.
6. In each place where he works there must be a person other than Dr K who has responsibility for the custody, security and oversight of controlled drugs, prescription pads and forms.
7. All staff where he works are to be made aware of the conditions on Dr K’s practice and their responsibility to contact the Health Committee if they have any concerns about Dr K.
8. He must practise only in places approved by the Chairperson of the Health Committee and comply with the practice protocols of those work places.
9. He is to establish and maintain a therapeutic relationship with a general practitioner and/or counsellor and/or psychiatrist approved by the Health Committee and comply with therapies recommended by those people.
10. He is to attend Alcoholics Anonymous and/or Narcotics Anonymous every week.
11. He is to abstain from alcohol and mood altering drugs except as prescribed by the health professional in accordance with point number 9 above.
12. He is not to prescribe himself or administer to himself any medicines or drugs.  (except as may be prescribed by a health professional in accordance with point 9 above).
13. He is to undergo drug urine testing or hair testing at any time required by the Health Committee.
14. He is required to attend Dr X or any other assessors when required by the Health Committee so he can be assessed.
15. He is to attend any meetings which the Health Committee wish him to attend.
16. He is to seek treatment and withdraw from practice if he fails to abstain from taking any addictive drugs.
17. He is to attend peer review meetings at least 9 times a year and submit written reports of his attendances at those meetings to the Medical Council.

The Tribunal noted the Dr K should be left in no doubt that failure to comply with these conditions and/or repeat offending would be viewed very seriously by the Tribunal and would be likely to result in his suspension.

Censure Fine and Costs

The Tribunal recorded its condemnation of Dr K by formally censuring him. The Tribunal did not impose a fine as Dr K’s financial circumstances were difficult.

Dr K recognised that it was appropriate he pay a contribution towards the costs of the hearing. The Tribunal ordered Dr K pay $4,148.50 which was 25% of the costs of the CAC and the Tribunal. In setting the costs order the Tribunal took the following points into account:

• Dr K’s financial circumstances;
• he fully cooperated with the Medical Council, the CAC and the Tribunal; and
• he has been found guilty of professional misconduct where his offending was serious.

Appeal:

The District Court referred back a condition (number seven above) to the Tribunal for reconsideration.  The Tribunal issued a minute altering the condition slightly, so that Dr K is now responsible for ensuring that the staff who should be aware of the conditions on his ability to practise are notified of the conditions.

The Doctor appealed the District Court Decision regarding name suppression to the High Court.  The Doctor abandoned the appeal.  The High Court adjudged that a Notice of Abandonment having been filed the appeal was taken to have been dismissed pursuant to Rule 712(2) High Court Rules. (Laubscher v CAC, High Court Wellington, CIV-2006-485-1632, SC Le'aupepe, Deputy Registrar, 8 June 2007).