Citation: Dix v Lin [2007] NSWSC 846
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 August 2007
Judge(s): Mathews AJ
Background
The prosecutor, the Registrar of the New South Wales Medical Board, brought three summonses against the defendant, a Chinese herbalist who was not a registered medical practitioner. The charges spanned offences alleged to have occurred between June 2004 and November 2006. All three summonses were consolidated into one amended summons containing 31 charges, and the defendant appeared unrepresented throughout the proceedings.
The charges fell into two broad categories. The first arose from events in September 2005, during which the defendant provided the abortion drug RU486 (mifepristone) to what he believed was a pregnant woman, without appropriate medical assessment or supervision. In fact, two private inquiry agents had attended his premises under a ruse, and the visit was covertly filmed. The second category covered numerous occasions on which the defendant held himself out as a doctor, including by signing medical certificates with the prefix "Dr" before his name.
The defendant pleaded guilty to all 31 charges under section 105 of the Medical Practice Act 1992, which prohibits unregistered persons from using titles, descriptions, or symbols that imply medical registration, and from holding themselves out as qualified to practise medicine or provide medical services.
Legal Issues
- Whether the defendant's conduct constituted offences under sections 105(1), (2), and (3) of the Medical Practice Act 1992
- What sentence was appropriate across the three series of offences, having regard to general deterrence, individual deterrence, the defendant's personal circumstances, and the seriousness of the RU486 conduct
- Whether a fine, a suspended sentence, or actual imprisonment was the appropriate sentencing disposition
Decision
The court accepted the defendant's guilty plea across all 31 charges. The RU486 conduct was treated as the most serious category of offending. Expert evidence established that providing this drug without proper medical supervision carried significant health risks, including that approximately five per cent of patients would require surgery to complete the abortion process. The court found that dispensing this drug on demand, without adequate assessment or follow-up, represented a grave departure from the standards required for such a procedure.
The court grouped the charges into three series for the purpose of sentencing: the RU486 offences, other offences committed before the issue of the first summons, and offences committed after that date. The sentences were accumulated across the three groups. General deterrence was treated as a significant sentencing factor, given the potential danger to members of the public from unregistered persons performing or facilitating medical procedures.
Individual deterrence also weighed heavily. The court expressed concern that, despite enforcement action, the defendant might continue to provide medically based services. A custodial term was considered necessary to make the consequences of any future reoffending unmistakably clear to him.
The court declined to impose a fine, finding that the defendant was a person of limited means who lived alone in a mortgaged property. A substantial fine risked creating a financial incentive for him to return to providing medical services. For the same reason, costs were not ordered in favour of the prosecutor. Instead, the court imposed cumulative sentences of imprisonment totalling one year and one month, suspended in their entirety, conditional on the defendant entering into a good behaviour bond for the same period.
Orders Made
- Imprisonment for six months (charges a and b: the RU486 offences), commencing 3 August 2007
- Imprisonment for three months (charges c to g), commencing 3 February 2008
- Imprisonment for four months (charges h to ee), commencing 3 May 2008
- All sentences suspended for the combined period of one year and one month, with the defendant released on a good behaviour bond for the same period
- Non-parole period of four months specified
- The two remaining summonses dismissed
Key Takeaways
- Under section 105 of the Medical Practice Act 1992, it is an offence for an unregistered person to use titles or descriptions implying medical registration, to hold themselves out as a doctor, or to claim an ability to provide medical services or advice.
- Dispensing RU486 without appropriate medical assessment, supervision, or follow-up was characterised by the Supreme Court as a very serious matter carrying significant potential hazards to patients.
- General deterrence is a weighty sentencing consideration where unregistered persons perform or facilitate procedures that carry real risks of physical harm to members of the public.
- Where a defendant lacks the financial means to pay a substantial fine, a fully suspended term of imprisonment may be appropriate, particularly where actual incarceration is not required to protect the community but a strong personal deterrent is still warranted.
- A costs order against a defendant may be declined where the defendant's limited financial means makes it inappropriate, even where the defendant has pleaded guilty to a substantial number of charges.
Legislation and Cases Referenced
Legislation:
- Medical Practice Act 1992 (NSW), sections 105(1), (2) and (3)
Cases cited: No cases were cited in the portions of the judgment provided.