Protecting the health and safety of the public

In Health Care Complaints Commission v Do [2014] NSWCA 307, the Court of Appeal was called upon to consider the adequacy of an earlier order by the Medical Tribunal, which had declined to make a disqualification order. Instead, it had imposed conditions, including that the respondent complete educational courses and undergo counselling for a minimum of twelve months, with which the respondent had to comply before reapplying for registration.

The factual background was that the doctor had treated her drug-dependent de facto partner between July 2006 and June 2008 and prescribed drugs of addiction and restricted substances, including the opiates morphine and pethidine and the anti-depressant amitriptyline. In June 2008, he died from an overdose of amitriptyline.

The Court of Appeal was of the view that the Tribunal did not give proper consideration to the public interest in having the respondent’s conduct denounced as unacceptable; it also did not address the full implications of its finding that the respondent’s conduct had revealed her “knowledge, skill and judgment in the practice of medicine” to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience. The departures from acceptable medical practice required her conduct to be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period of time.

The Court of Appeal relevantly observed that (drawing from the headnote and see also [35]):

The objective of protecting the health and safety of the public is not confined to protecting the patients of a particular practitioner from the continuing risk of his or her misconduct, but includes protecting the public from similar misconduct of other practitioners and upholding public confidence in the medical profession. That objective is achieved, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise. Denouncing misconduct acts as both a specific and general deterrent and maintains public confidence in the profession.

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