Citation: R v Gary GOW [2006] NSWDC 78
Court: District Court of New South Wales
Date: 27 October 2006
Judge(s): Berman SC DCJ
Background
The offender was a general practitioner who also practised homeopathy. A patient suffering from chronic back pain attended the practice seeking morphine after another GP had refused to prescribe it. After initial consultations exploring homeopathic treatment, the offender ultimately prescribed morphine on 22 September 2004.
The prescription was for morphine tartrate, a drug intended for severe intractable pain in terminal cancer patients and designed to be administered slowly via a syringe driver. The offender had intended to prescribe morphine sulphate, which comes in far smaller doses suitable for self-administration. Five ampoules were prescribed, each containing 120 milligrams of morphine tartrate, with no written dosage instructions.
On 2 October 2004, the patient injected the contents of one ampoule into his thigh. He fell asleep and died approximately 12 hours later. The offender was charged with manslaughter and, after pleading not guilty and giving evidence during trial, changed his plea to guilty at the conclusion of his own evidence.
Legal Issues
- What sentence was appropriate for the manslaughter of a patient through a series of serious prescription errors by a medical practitioner?
- Whether the gravity of the offending required a term of imprisonment, notwithstanding the offender's character, remorse, and lack of prior criminal history.
- Whether the sentence of imprisonment should be suspended.
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence.
Decision
The court identified four distinct errors that together constituted the criminally negligent conduct. First, the offender prescribed morphine tartrate when he intended to prescribe morphine sulphate. Second, he gave no adequate oral instructions about dosage. Third, the prescription contained no written directions, in breach of regulations governing Schedule 8 drugs. Fourth, when consulting MIMS (a pharmaceutical reference) to confirm quantities, the offender failed to recognise that the smallest available dose of morphine tartrate (120 milligrams per ampoule) should have alerted him that he was looking at the wrong drug entirely.
The court acknowledged significant mitigating factors. The offender had an unblemished career spanning decades, was described by patients and colleagues as an exceptionally caring practitioner, and displayed genuine and deep remorse throughout the proceedings. The court also noted that the offender, when giving evidence, chose not to blame the deceased for his own death, despite having the opportunity to do so without contradiction. This was treated as powerful evidence of good character.
Nonetheless, the court found that the cumulative seriousness of the errors and their fatal consequence required a sentence of imprisonment. The court observed that prescription errors of this kind occur with some regularity across the health system, and that the sentence needed to communicate to all those involved in patient care the gravity with which the law treats gross breaches of professional duty.
The court found special circumstances, primarily because this was the offender's first offence, and set a non-parole period of 12 months with a total sentence of 18 months. Both the Crown and defence had agreed that a suspended sentence was appropriate, and the court, after forming its own independent view, ordered that the sentence be suspended for its full term.
Orders Made
- Non-parole period of 12 months, with a total sentence of 18 months imprisonment
- Execution of the sentence suspended for the full term of the sentence
- The offender released from custody on condition of entering into a good behaviour bond for the term of the sentence
- Bond conditions: good behaviour, attendance before the court if called upon, and notification to the court registrar of any change of residential address
Key Takeaways
- A series of cumulative prescription errors by a medical practitioner, each individually serious, can collectively satisfy the high threshold for criminal liability in manslaughter, even where no single act alone may have crossed that line.
- The District Court confirmed that the need for general deterrence in cases of medical negligence manslaughter can require a sentence of imprisonment even where the offender has an impeccable personal and professional history and displays genuine remorse.
- Where both the Crown and defence agree on a sentencing outcome, the sentencing court retains an independent obligation to reach its own conclusion; agreement between parties does not relieve the court of that duty.
- An offender's decision not to exploit an opportunity to deflect blame onto a deceased victim, when that opportunity existed and would have gone unchallenged, may be treated as meaningful evidence of character and genuine acceptance of responsibility.
- Special circumstances in sentencing can be established by reference to a first-time offender's lack of prior criminal history, permitting a non-parole period that represents a greater proportion of the total sentence than the standard ratio would otherwise produce.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Regulations governing the prescribing of Schedule 8 drugs (referred to but not specifically named in the judgment)
Cases: No cases were cited in the judgment text provided.