Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sivewright [2021] NSWCATOD 45 Hearing dates: 1 March 2021 Date of orders: 22 April 2021 Decision date: 22 April 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr G Yeo, Senior Member Dr H Wilson, Senior Member J Barker, General Member Decision: (1) Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law, Dr Sivewright's registration as a medical practitioner is subject to the following conditions, which are substituted for the conditions previously imposed by the Medical Council: 1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 3. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 4. Not to possess, supply, administer or prescribe any drug containing codeine. 5. To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered medical practitioners (excluding the subject practitioner): • Where the patients and patient records are shared between the medical practitioners • Where there is always one other registered medical practitioner on site. 6. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the Practice Conditions to the; (a) Medical Director and/or; (b) Principal of Practice and/or; (c) Any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). 7. To authorise and consent to any exchange of information between the Medical Council of NSW, Pharmaceutical Regulatory Unit (Ministry of Health) and Medicare Australia for the purpose of monitoring compliance with these conditions. 8. Not to treat (including prescribe to) himself or immediate family members or their partners. (a) In the event of a medical emergency where there are no other medical services available, he may provide treatment to the above. A medical emergency is an event where it is not possible or reasonable to have a patient with a life threatening or urgent condition, seen by another medical practitioner or transferred to the nearest hospital. The practitioner must notify the Council in writing within 48 hours of the event occurring. 9. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 10. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: (a) The audit is to be held from time to time as required by the Council. (b) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements. The auditor(s) should pay particular attention to documentation of history, examination and management in the medical records. (c) To authorise the auditor(s) to provide the Council with a report on their findings. (d) To meet all costs associated with the audit(s) and any subsequent reports. Clauses not published to the public National Register 1. Not to prescribe for self-medication. 2. Not to self-administer any: (a) prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or (b) narcotic derivative, non-prescription compound analgesic or cold medication; or (c) any drug containing codeine; unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. Within 7 days of being prescribed such treatment from his treating practitioner, the practitioner must: (i) notify the Medical Council of NSW and Council appointed practitioners. (ii) provide written confirmation of the treatment from the treating practitioner. 3. To take any medication as prescribed by his treating practitioners. 4. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a. urine drug screening 2 times a week, and b. quarterly hair drug screening. 5. To comply with the Medical Council's Alcohol screening policy and Participant procedure: CDT screening (as varied from time to time) and attend for CDT screening on the first Monday of each month. 6. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 7. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 8. To attend for treatment by an addiction specialist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 9. The extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council-appointed practitioners. 10. To attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW. 11. To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Medical Council of NSW. 12. To authorise the Medical Council of NSW to forward copies of the s150 decision and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners and to his treating practitioners. (2) Dr Sivewright is to pay the costs of the Health Care Complaints Commission in these proceedings, to be agreed or assessed. Catchwords: OCCUPATIONS — Medical practitioners — Misconduct and discipline Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Poisons and Therapeutic Goods Regulation 2002 (repealed) Road Transport Act 2013 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Do [2014] NSWCA 307 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) John Bernard Sivewright (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00219088 Publication restriction: 1. Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the schedule to the complaint. 2. Under s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure, in connection with these proceedings, to any person or entity, of the name of the practitioner's wife, is prohibited. REASONS FOR DECISION 1. On 27 July 2020, the Health Care Complaints Commission ('the HCCC') filed an application for disciplinary orders and findings in the Tribunal, based upon ten complaints in relation to Dr Sivewright, a general practitioner. An amended application, based upon nine complaints, was filed on 1 March 2021. The application was made under the Health Practitioner Regulation National Law (NSW) ('the National Law'). 2. The application proceeded to a hearing in the Tribunal on 1 March 2021. Both stage 1, regarding Dr Sivewright's culpability in relation to the complaints before the Tribunal, and stage 2, regarding the issue of what disciplinary orders it is appropriate for the Tribunal to make, were the subject of evidence and submissions at the hearing. 3. The Tribunal received numerous documents into evidence, and heard oral evidence from Dr Sivewright. Background 1. Dr Sivewright was first registered as a medical practitioner in New South Wales in 1975. He practised as a general practitioner. He enjoyed good health and excelled in rowing and cycling. 2. In 1992, at the age of 40, Dr Sivewright was very seriously injured when he was struck from behind by a car whilst he was on a cycling training ride. He required six major operations in the subsequent years and endured severe and prolonged pain. He took pethidine, by prescription and under the supervision of his doctors, in this period of time, for about two years continuously. He became addicted to opioids. 3. By 2003, Dr Sivewright was continuing to experience bouts of severe pain, and came to experience fear of such bouts, even when the pain was in abeyance. He began to self-medicate periodically with opioid analgesics both to alleviate pain and to alleviate the anxiety about the possibility of a bout of pain occurring. 4. The New South Wales Medical Board Impaired Registrants Panel intervened in 2008. It held an inquiry and recommended that Dr Sivewright participate in the Medical Board's Health Program. It imposed conditions upon his registration. Dr Sivewright remained in the Health Program until February 2011, when the health and practice conditions on his registration were removed. Dr Sivewright continued practising as a general practitioner. Dr Sivewright admits that he was abusing Panadeine Forte whilst on the Health Program. 5. Dr Sivewright addressed his dependence upon Panadeine Forte with a 9 day in-patient treatment program in late 2013. 6. In 2014, Dr Sivewright had emergency abdominal surgery, following which he was given morphine. His evidence was that this re-ignited his Opioid Use Disorder. He began intermittently prescribing morphine and pethidine for his own use, and resumed abusing Panadeine Forte. 7. Dr Sivewright experienced a series of bereavements in 2014-2015. His wife was also seriously injured in two accidents, one in 2014 and the other in 2015. These events had a detrimental impact upon his emotional well-being. 8. By mid-2016, Dr Sivewright was self-administering about 200-300mg of pethidine every evening. 9. Dr Sivewright's wife experienced a series of painful and debilitating illnesses in 2016. Dr Sivewright was very distressed for her. 10. Dr Sivewright had a car accident on 7 December 2016. A blood sample taken from him in hospital showed that he had pethidine in his blood. This led to him self-reporting to the Australian Health Practitioner Regulatory Authority ('AHPRA') in relation to his inappropriate use of self-prescribed Schedule 8 drugs. The Medical Council was notified of his abuse of pethidine. 11. On 14 December 2016, Dr Sivewright was once again admitted to hospital for Opioid Use Disorder treatment. He commenced medication assisted treatment for opioid dependence with sublingual buprenorphine and naloxone combination under the NSW Opioid Treatment Program on 22 December 2016. 12. Dr Sivewright continued to self-administer pethidine until February 2017. It was his evidence that he had not used pethidine or morphine since that time. He continues to take buprenorphine as prescribed by his treating doctor. 13. Dr Sivewright was the subject of proceedings under s 150 of the National Law before the Medical Council panel on 23 February 2017. In addition to issues relating to his Opioid Use Disorder, the hearing dealt with Dr Sivewright's practice of treating his wife and her grandchildren. Conditions were imposed upon his registration. 14. A further hearing under s 150 of the National Law was held on 21 March 2018 on account of Dr Sivewright's failure to comply with some of the conditions imposed. He had prescribed Schedule 8 and Schedule 4D drugs, and he had prescribed for himself and for family members. The outcome of this hearing was that further conditions were placed upon Dr Sivewright's registration. 15. At the time of the hearing before us, Dr Sivewright was practising as a general practitioner, subject to twenty-two conditions. Complaint One 1. Complaint One is as follows: The practitioner engaged in unethical conduct by inappropriately obtaining drugs of addiction for self-administration and is guilty of unsatisfactory professional conduct pursuant to ss 139(1)(l) and 144(b) of the National Law Particulars of Complaint One 1. The practitioner inappropriately obtained drugs of addiction for self-administration in accordance with the table at Schedule A. 2. In possessing the drugs referred to in A1-A8 of Schedule A, the practitioner was required to, and failed to, maintain a register of drugs of addiction, contrary to clause 111 of the Poison and Therapeutic Goods Regulations 2002 (repealed). 3. In possessing the drugs referred to in A9-A123 of Schedule A, the practitioner was required to, and failed to, maintain a register of drugs of addiction, contrary to clause 111 of the Poison and Therapeutic Goods Regulation 2008. 1. The table at Schedule A sets out 123 incidents of the supply to the practitioner of drugs of addiction by means of the use of a prescription written by the practitioner and made out to one of 24 patients of the practitioner, who are referred to in Schedule A as Patient A to Patient X. 2. All of the prescriptions are for either morphine or pethidine. 3. A1 – A8 in the Schedule are the first eight incidents of the obtaining of drugs of addiction by the practitioner alleged, which are the subject of Complaint One. The first two incidents were in 2003. The first incident was the obtaining of 100mg of pethidine, and the second incident involved 15mg of morphine. The third and fourth incidents were in 2004. Each involved 100mg of pethidine. The fifth incident was in 2006. The sixth, seventh and eighth incidents were in 2007. The fifth, sixth, seventh and eighth incidents each involved 100mg of pethidine. The Poisons and Therapeutic Goods Regulation 2002 (repealed) applies to incidents A1-A8 because it was the Regulation in force at the relevant times. 4. A9 - A123 in the Schedule are the remainder of the alleged incidents of the obtaining of drugs of addiction by the practitioner, which are the subject of Complaint One. A9 occurred in 2015 and involved the obtaining of 5mg of morphine. A10-A118 all occurred in 2016. On twenty-six of those occasions, the drug obtained was morphine. For most of those occasions, the quantity of 5mg is specified in the record. On 82 of those occasions, the drug obtained was pethidine, 100mg. Incidents A119-A123 all occurred in 2017. On each occasion, 100mg of pethidine was obtained. The Poisons and Therapeutic Goods Regulation 2008 applies to incidents A9-A123 in the Schedule. 5. In his Reply, Dr Sivewright admits Complaint One, except for incident A2, adding that he suffered an impairment at the time of the conduct. Dr Sivewright says that he does not recall each incident, but that the Schedule to Complaint One is consistent with the general behaviour in which, he acknowledges, he was engaging at the time. Dr Sivewright does, however, have a recollection of incident A2, which concerns a prescription which he made out to a patient, referred to as Patient B in the Schedule, who is a member of Dr Sivewright's extended family. Dr Sivewright gave evidence that he recalls that Patient B was injured whilst playing sport several days before the date of incident A2. Patient B underwent an orthopaedic operation as an in-patient. When she was discharged from hospital, her pain was not adequately controlled. It was Dr Sivewright's evidence that he wrote a prescription for 15mg of morphine for her. At a subsequent consultation with Patient B the following month, Dr Sivewright recorded the prescription in his notes. 6. We accept Dr Sivewright's evidence with respect to Patient B and incident A2 in the Schedule. That part of Complaint One has not been proven. 7. The other incidents in the Schedule, namely incidents A1 and A3-A123, which are admitted, have been proven to the appropriate standard of proof, which is the balance of probabilities with the Briginshaw level of persuasion founded upon clear and cogent evidence. (see Briginshaw v Briginshaw (1938) 60 CLR 336). We note that Schedule A is compiled from records required to be kept by pharmacists under legislation. Complaint Two 1. Complaint Two is as follows: The practitioner engaged in unethical conduct by breaching on Order imposed upon him by the Director-General of the Department of Health (NSW) and is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(l) and 144(b) of the National Law. Background to Complaint Two On 4 April 2011, the Director-General of the Department of Health (NSW) imposed an order under s 175(1) of the Poisons and Therapeutic Goods Regulation 2008 that the practitioner neither take possession of a drug of addiction, nor issue a prescription for pethidine (the 4 April 2011 order). Particulars of Complaint Two 1. The practitioner breached the 04 April 2011 order when he engaged in the conduct set out in A9-A123 of Schedule A of Complaint One above. 1. Dr Sivewright, in his Reply, admits Complaint Two and adds that, at the relevant time, he was suffering from an impairment. 2. The Director-General made three orders at the same time, to operate from 4 April 2011, and these were communicated to Dr Sivewright in a letter dated 28 March 2011. These orders, which we take to be the 4 April 2011 orders referred to in Complaint Two, were in the following terms: You may not take possession of, or supply a drug of addiction. You may not issue a prescription for a drug of addiction intended for yourself. You may not issue a prescription for pethidine. 1. There is no doubt that, in writing each of the prescriptions, and obtaining the drugs, referred to in A9-A123 of Schedule A, Dr Sivewright was in breach of the order that he not take possession of, or supply, a drug of addiction and, in relation to 88 of those incidents, he was in breach of the order that he not issue a prescription for pethidine. 2. Complaint Two has been proven. Complaint Three 1. Complaint Three is as follows: The practitioner engaged in improper conduct by prescribing patients a drug of addiction for an extended period without appropriate authority and is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(l) and 144(b) of the National Law Background to Complaint Three 1. Absent proper authority, a medical practitioner is prohibited from prescribing a type B drug of addiction for a continuous therapeutic use for a period exceeding two months: s 28(2)(a) of the Poisons and Therapeutic Goods Act 1966. 2. Morphine is a type B drug of addiction: cl 123 of the Poisons and Therapeutic Goods Regulation 2008. 3. The practitioner was not granted authority to prescribe for periods exceeding two months under s 29 of the Poisons and Therapeutic Goods Act 1966. Particulars to Complaint Three 1. The practitioner inappropriately prescribed morphine to Patient I for a period exceeding two months, being from 10 January 2016 to 14 February 2017. 2. The practitioner inappropriately prescribed morphine to Patient O for a period exceeding two months, being from 31 December 2015 to 18 March 2016. 3. The practitioner inappropriately prescribed morphine to Patient M for a period exceeding two months, being from 05 January 2016 to 15 April 2016. 4. The practitioner inappropriately prescribed morphine to Patient Y for a period exceeding two months, being from 30 March 2016 to 5 October 2016. 1. Dr Sivewright, in his Reply, admits the whole of Complaint Three. 2. In his statement of 18 January 2021, Dr Sivewright said, of Complaint Three: 92. I have admitted all 4 Particulars. I was aware of the requirement to obtain an Authority from NSW Health if a drug of addiction was prescribed for a continuous therapeutic use for a period exceeding two months. I did not calculate the period of time with reference to these patients who were in a nursing home. 1. We find that Complaint Three has been proven. Complaint Four 1. Complaint Four is as follows: The practitioner made false and/or misleading statements to the Medical Council of New South Wales and is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) and 144(b) of the National Law. Background to Complaint Four 1. On 23 February 2017, the Medical Council of New South Wales conducted s 150 proceedings with the practitioner. He gave evidence orally per s 150J(1)(c) of the National Law. 2. Section 150J(3)(b) of the National Law prohibits practitioners from providing evidence knowing that evidence to be false or misleading. Particulars of Complaint Four 1. The practitioner knowingly gave false and/or misleading evidence to the Medical Council that: a. he had never prescribed medicines in his wife's name for his personal use; and b. he had prescribed opioid analgesics for his wife in circumstances where her treating general practitioner was aware of the prescribing. 1. Dr Sivewright, in his Reply, denies Complaint Four. 2. The transcript of the hearing conducted on 23 February 2017 under s 150 of the National Law, referred to in Complaint Four ('the s 150 transcript'), is in evidence (see A1, Volume One of the Applicant's documents). 3. On p 77 of the s 150 transcript, an exchange between Dr Sivewright and the members of the panel concerning prescriptions ('scripts') for pethidine issued by Dr Sivewright began. Dr Sivewright said that he has two patients for whom he prescribes pethidine for their use. One is an elderly patient with a terminal illness who responds poorly to morphine, and the other is a middle-aged person with lung cancer. In response to questioning, Dr Sivewright said that some of the scripts that he wrote for his own purposes were in the names of the two patients who needed pethidine, and others were not. In this part of the conversation at the s 150 hearing, it is not explicitly stated that the scripts being discussed are scripts for pethidine, but it is clear by inference from the whole exchange, beginning on p 77, that pethidine is the drug being discussed. At p 78 of the transcript of the s 150 hearing, Dr Sivewright indicated that he had been issuing scripts, for his own use, for three patients in addition to the two patients who needed pethidine: in other words, five patients in total. It is clear to us, from the context, that throughout this exchange it was implicit and understood by all participants in the exchange that the topic of the exchange was the issuing of scripts for pethidine. 4. On p 83 of the s 150 transcript, there is an exchange between Dr Sivewright and the panel members in which Dr Sivewright clearly acknowledged that he had prescribed OxyContin for his wife. He indicated that he had issued a number of prescriptions for his wife, sometimes from the computer at his practice, and sometimes by means of handwritten prescriptions. 5. In the course of the s 150 hearing on 23 February 2017, the transcript records that the panel took a break from 12:50pm to 12:58pm. When the panel reconvened, Dr Sivewright sought to clarify a point and the panel permitted him to make the clarification. The following exchange ensued (see p 86 of the s 150 transcript): DR SlVEWRlGHT: Yes. In relation to the number of patients concerned, when I said five, you know, I don't know. I don't know. It might have been 10. DR DEMIRKOL: Okay. DR SIVEWRIGHT: I just don't - it wasn't a case of there were five. DR DEMIRKOL: Okay. So can we generalise and say that none of them did actually know that you were prescribing under their names? DR SIVEWRlGHT: That's true. DR DEMIRKOL: Yes, okay. DR SIVEWRIGHT: That's true. DR DEMIRKOL: So the number you can't be sure but - - - DR SIVEWRIGHT: Not really. Yes, that was - yes. Sorry, was there anything else I wanted to - - - MS ..........: Never in the name of his family or his wife. DR SIVEWRIGHT: Never in - yes, never in the name of - - - MS ..........: Not that that makes it any different. DR SIVEWRlGHT: Never in family names. DR DEMIRKOL: Okay. DR SIVEWRIGHT: Yes, that's about the long and the short of it. Yes. 1. Dr Sivewright provided a statement to the Tribunal dated 18 January 2021. He also gave oral evidence. In his statement, he set out a number of occasions, from 16 May 2016 to 4 February 2017, upon which he had prescribed Endone for his wife, one occasion on which he had prescribed Codeine for her and one occasion on which he had prescribed OxyContin for her. 2. In his oral evidence, Dr Sivewright said that he had prescribed Panadeine Forte for his wife for his own use. However, he said, both in his statement and in oral evidence before us, that when he said, at the s 150 hearing on 23 February 2017, in relation to writing scripts, 'Never in family names', he was referring to scripts for pethidine, and not for scripts of any other drug, including Panadeine Forte. 3. On our reading of the transcript of the s 150 hearing, it seems to us to be clear that Dr Sivewright's statement 'Never in family names' was a statement made in relation to the exchange he had previously had, during the s 150 hearing, which is recorded on p 77-78 of the s 150 transcript, about his practice of writing scripts for pethidine for his own use in the names of his patients. In context, in saying, on p 86 of the s 150 transcript, 'Never in family names', Dr Sivewright was saying that he had never written a script for pethidine in a family name for his own use. There is no evidence to the contrary. The evidence to the Medical Council referred to in Complaint Four, Particular 1a, properly understood in context, was not false and misleading. 4. Dr Sivewright admitted, in his statement and in oral evidence, that his evidence at the s 150 hearing of 23 February 2017 with respect to his prescribing to his wife being 'under the auspices' of her general practitioner was misleading, but said that he did not intend to mislead the panel. We infer that he was conveying that his evidence was careless, rather than intentionally misleading. He said that his wife's general practitioner was generally aware that he would sometimes prescribe for his wife when the general practitioner was unavailable, but admitted that the way he described the situation may have indicated that the general practitioner was aware of each and every instance of prescribing by Dr Sivewright. It is clear from the emails written by Dr Sivewright's wife's general practitioner to Dr Sivewright's wife that he was not so aware, and Dr Sivewright admits that. To that extent, Dr Sivewright admitted Complaint Four Particular 1b. To that extent, we find that it has been proven. Complaint Five 1. Complaint Five is as follows: The practitioner breached a condition to which his registration was subject and is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(c)(ii) and 144(b) of the National Law. Background to Complaint Five On 23 February 2017, following s 150 proceedings under the National Law, the Medical Council of New South Wales imposed conditions on the practitioner. Particulars of Complaint Five 1. The practitioner was subject to a condition that he not possess, supply or administer any drug of addiction or restricted substance. That condition was breached as: a. On 22 March 2017, he prescribed phenobarbitone, a restricted substance. b. On 26 April 2017, he self-prescribed frusemide, a restricted substance. c. On 23 June 2017, he self-prescribed desvenlafaxine, a restricted substance. 2. The practitioner was required to comply with drug testing as directed by the Medical Council and breached that condition when he: a. attended for drug testing on 9 October 2017 in circumstances where he was directed to attend on 3 October 2017. b. (deleted) c. attended for drug testing on 2 February 2018 in circumstances where he was directed to attend on 5 February 2018. 1. Dr Sivewright, in his Reply, admitted the particulars to Complaint Five, and admitted that he breached conditions to which his registration was subject and was guilty of unsatisfactory professional conduct, but said that he 'did not do so knowingly'. 2. In relation to Particular 1, in his statement, Dr Sivewright sets out the circumstances of the issuing of the prescriptions in Particular 1 of Complaint Five. The prescriptions in Particulars 1b and 1c were for Dr Sivewright himself, and were for medication which he was taking routinely, which was usually prescribed by one of his doctors. He was unable to recall why he felt the need to write his own prescriptions on the occasions alleged. The prescription in Particular 1a was for a patient with complex needs whose care was being transferred to another general practitioner, presumably on account of Dr Sivewright's inability to prescribe necessary medication for him because of the condition. The prescription the subject of the allegation was issued in the transitional period and was necessary to prevent seizures. We take Dr Sivewright's pleading that he did not breach the condition to his registration which prevented him from prescribing any drug of addiction or restricted substance 'knowingly' to mean that the condition was not at the forefront of his mind at the time that he wrote the prescriptions referred to. We accept his explanation. Nevertheless, Complaint Five, Particular 1 has been proven. 3. In relation to Particular 2, in his statement, Dr Sivewright sets out his attempts to comply with the testing regime. He summarises his shortcomings in that regard as 'innocent confusion' in the early stages of the regime. We accept that explanation. Complaint Five, Particular 2 has, however, been proven. Complaint Six 1. Complaint Six is as follows: The practitioner, in providing false declarations in his renewal application, is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) and 144 (b) of the National Law. Particulars of Complaint Six Impairment 1. On 17 January 2017, the practitioner was assessed by a council appointed practitioner, Dr Glen Smith. Dr Smith assessed the practitioner as suffering from an impairment, namely severe opioid use disorder. 2. The practitioner was required to notify AHPRA whether he had an impairment that detrimentally affected or was likely to detrimentally affect his capacity to practice medicine. 3. The practitioner filed renewals of registration in 2017 and 2018, and failed to notify AHPRA of his impairment. Change in criminal history 4. (deleted) 5. The practitioner filed a renewal of registration application. It was received by AHPRA on 4 September 2018. 6. The practitioner falsely declared that he had not had any change to his criminal history since his last declaration to AHPRA. 1. Dr Sivewright, in his Reply, admitted Particulars 1, 2 and 5 to Complaint Six. In relation to Particulars 3 and 6, and Complaint Six as a whole, Dr Sivewright pleaded that he admitted the particulars and the complaint 'but did not do so knowingly'. 2. In his statement, Dr Sivewright says that he had, in December 2016, reported his impairment to the Australian Health Practitioners Regulatory Authority (AHPRA) and the Medical Council. His completion of his application for re-registration in 2017 and 2018 obviously post-dated that report. Dr Sivewright said that, at the time, as AHPRA and the Medical Council knew about his impairment, he did not consider it necessary to acknowledge it on the applications. He accepts that his view was wrong. 3. As to Particular 6, Dr Sivewright said, in his statement, that because 'the Magistrate had dismissed' the charge of negligent driving against him, he did not consider that he had to disclose it. This was a misunderstanding. The Magistrate found Dr Sivewright guilty of the charge, but did not proceed to a conviction under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This clearly comes within the scope of his 'criminal history' for the purposes of the application for re-registration, and that is clear from the form, which sets out the definition of 'criminal history' in the National Law. Dr Sivewright acknowledges that he should have sought advice on this issue. 4. It is not necessary, in order for Complaint 6, Particulars 3 and 6 to be proven, for Dr Sivewright to have given the false information on the renewal of registration applications knowingly, in the sense that he held a deliberate intention to deceive at the time of completing the applications. It is enough that Dr Sivewright, at the time of filling in the forms, was aware of his severe Opioid Use Disorder and aware that he had been found guilty of negligent driving, albeit without a conviction being recorded, and failed to answer the relevant questions accurately. 5. Complaint 6 has been proven. Complaint Seven 1. Complaint Seven is as follows: The combination of instances of unsatisfactory professional conduct amounts to professional misconduct as it is conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration, pursuant to ss 139E(b) and 144(b) of the National Law. Particulars of Complaint Seven 1. Complaints One to Six and the particulars thereof are repeated and relied upon cumulatively. 1. Dr Sivewright, in his Reply, admitted Complaint Seven. 2. We agree that the combination of the instances of unsatisfactory professional conduct which we have found to have been proven amount to professional misconduct. Complaint Eight 1. Complaint Eight is as follows: The practitioner was made the subject of a criminal finding for an offence in New South Wales pursuant to s 144(a) of the National Law. Particulars of Complaint Eight 1. On 15 May 2018, at the Bankstown Local Court, the practitioner pleaded guilty to the offence of negligent driving, contrary to s 117 of the Road Transport Act 2013. 2. The charge was found proved, but dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. 1. Dr Sivewright, in his Reply, admitted both of the particulars to Complaint Eight. In relation to Complaint Eight as a whole, Dr Sivewright pleaded 'Admitted' if a finding of guilty for an offence under the Road Transport Act 2013 (NSW) is determined to be a 'criminal finding'. 2. There is no doubt that a finding of guilty for an offence under the Road Transport Act 2013 is a criminal finding. Complaint Eight has been proven. Complaint Nine 1. Complaint Nine is as follows: The practitioner had a substance abuse disorder and suffers from an impairment pursuant to ss 5 and 144(d) of the National Law. Particulars of Complaint Nine 1. Between 2003-2006 and 2015-2017, the practitioner engaged in repeated abuse of opioid analgesics pethidine and morphine. 2. The practitioner practised his profession whilst impaired with a drug addiction. 3. The practitioner was assessed by a psychiatrist and diagnosed with a substance abuse disorder. 1. Dr Sivewright, in his Reply, admitted Complaint Nine. In relation to Particular 2, Dr Sivewright pleaded 'The Respondent admits he practised his profession with an impairment as defined under the National Law'. 2. Complaint Nine has been proven. Stage Two 1. We have found Dr Sivewright guilty of unsatisfactory professional conduct in relation to six complaints. We have determined that the combination of the misconduct in the elements of those six complaints which we have found to have been proven amounts to professional misconduct. Dr Sivewright is also guilty of Complaint Eight, made under s 144(a) of the National Law, in that he has been made the subject of a criminal finding in relation to the charge of negligent driving, and Complaint Nine, made under s 144(d) of the National Law, in that he practised medicine whilst impaired with Opioid Use Disorder. 2. The Tribunal has power, under s 149A of the National Law, to impose a range of disciplinary orders if the subject matter of a complaint against a health practitioner has been proven or admitted. 3. The purpose of disciplinary orders was discussed in Prakash v Health Care Complaints Commission [2006] NSWCA 153, and Basten J said, at [91]: … The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. 1. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said, at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. We have set out above, at [4]-[18] the outline of the circumstances in which the complaints the subject of these proceedings arose. 2. Dr Sivewright suffered very serious injuries upon being hit by a car whilst cycling in 1992. He used pethidine for two years to manage persistent pain caused by these injuries that was unrelieved despite a number of operations. His Opioid Use Disorder arose from pethidine use to manage his chronic pain which emerged as a consequence of his injuries, and which continues. The accident in 1992, and the physical impact that it had on Dr Sivewright, has affected him every day since. 3. In January 2017, Dr Glenn Smith, psychiatrist, who assessed Dr Sivewright for the Medical Council, diagnosed him as having a severe Opioid Use Disorder (by then on 'maintenance therapy'), Bipolar II Disorder (in full remission) and chronic pain. Dr Smith said that Dr Sivewright suffered from 'impairment' under the National Law on account of his severe Opioid Use Disorder. Dr Smith said that there were features of Alcohol Use Disorder in Dr Sivewright's history. Dr Smith said that Opioid Use Disorder is 'a chronic, relapsing condition', which requires 'a focus on abstinence from all addictive substances and behaviours'. Dr Smith recommended that Dr Sivewright continue on sublingual buprenorphine/naloxone combination. Dr Smith did not consider that Dr Sivewright had any current impairment which would prevent him from practising medicine. 4. We note that Dr Sivewright's self-prescribing ceased in 2007, only to resume in 2015 after the morphine given to him in the wake of emergency abdominal surgery reignited his cravings for opioids. He then experiences a cascade of adverse life events, including a series of bereavements in which he lost people close to him, together with two serious accidents which befell his wife and caused her significant injury. Then, in 2016, Dr Sivewright's wife suffered a series of serious and debilitating illnesses. Dr Sivewright experienced a high degree of stress and anxiety at his wife's suffering. Dr Sivewright's opioid use then ceased in February 2017 following his car accident in December 2016 and the consequent criminal charges and treatment of his Opioid Use Disorder. It was Dr Sivewright's evidence that the sublingual buprenorphine/naloxone combination he was prescribed in December 2016 whilst an in-patient, in the wake of his car accident, has been the key element in his abstinence from opioids since February 2017. The dosage was increased from December 2016 to February 2017 until the effect was such that Dr Sivewright stopped self-medicating. The dosage has changed since, but Dr Sivewright has been able to continue to abstain from taking morphine or pethidine, assisted by the urine and hair tests to which he is subject on account of the conditions on his registration. 5. In his statement, and in his oral evidence, Dr Sivewright was frank about the events the subject of the complaints before us, and the context in which they occurred. He acknowledged that, for long periods of time, when his behaviour was most affected by his severe Opioid Use Disorder, he engaged in conduct calculated to conceal his drug-taking from the people around him. He admitted that, for many years, he did not disclose the full extent of his Opioid Use Disorder to his doctors or to his wife. He admitted that he was not open and honest with the Medical Council at all times. Dr Sivewright recognises that, up until 2017, in thinking that he could manage his drug-taking at a level which enabled him to keep functioning indefinitely, he was deluded. 6. Since February 2017 Dr Sivewright has abstained from taking morphine and pethidine. He is assisted in this by taking sublingual buprenorphine/naloxone combination, under the supervision of his addiction medicine specialist, at doses which sufficiently control his craving for opioids. 7. It is significant that, although Dr Sivewright has practised medicine throughout much of the period during which his Opioid Use Disorder was having an impact upon his behaviour, there has not been any complaint about him by a patient. 8. Dr Sivewright has been seeing his general practitioner monthly. He sees his psychiatrist every 6 to 8 weeks. He sees his addiction medicine specialist, who prescribes Suboxone for him, regularly. He also sees a psychologist every 6-8 weeks. 9. We were provided by Dr Sivewright with reports from psychiatrists, his addiction medicine specialist and a psychologist. All are pleased with his progress. None express any reservations about his ability to practice medicine. We have regard to the references provided by Dr Sivewright, all of which speak in positive terms of his ability as a general practitioner. 10. In a case involving the long term self-administration of opioids, the writing of false prescriptions and the misleading of the Medical Council, the consideration of the cancellation or suspension of the practitioner's registration arises. This is so even though the HCCC does not seek cancellation or suspension. 11. In considering the appropriate disciplinary orders in this matter, we take into account the interests of patients at large and, in particular, Dr Sivewright's current and potential patients. Given that Dr Sivewright has not sought out morphine or pethidine for a period of four years, having regard to the medical evidence before us, we do not consider that he presently poses a risk to patients. We accept the evidence that this situation is likely to continue for as long as he takes sublingual buprenorphine/naloxone combination under supervision. 12. In Lindsay v Health Care Complaints Commission [2010] NSWCA 194, Sackville AJA said at [170]: … Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. 1. All of the evidence before us indicates that Dr Sivewright's impairment does not presently interfere with his ability to practice as a general practitioner. 2. Following Prakesh and Do, we must consider the public interest, including the maintenance of public confidence in the high standards of the medical profession. Dr Sivewright is 69 years old, and has given most of his life to the practice of medicine. He is dedicated to the practice of medicine. He wishes to continue practising for a further five years. He is proud of his contribution to the community, particularly in his current practice. On his evidence, even at the worst times of his Opioid Use Disorder, he was preoccupied with maintaining his service as a general practitioner. Dr Sivewright has expressed remorse and contrition concerning the behaviour the subject of the application. He has undergone extensive psychiatric and psychological treatment. In the particular circumstances of this matter, we do not believe that the maintenance of public confidence in the high standards of the medical profession requires that Dr Sivewright's registration be cancelled or suspended. We note that the public also has an interest in having experienced and competent general practitioners working in the community. 3. A further aspect of public interest is the deterrence of other health practitioners from conduct like the conduct the subject of the complaints, and the encouragement of compliance with appropriate standards, and the highlighting of the risks inherent in failing to comply with those standards. It is relevant, in this context, that Dr Sivewright's impairment initially arose from circumstances wholly out of his control, namely the accident in 1992 which triggered his severe Opioid Use Disorder. Nearly 30 years have passed since that time. Addiction medicine has emerged as a discipline, and strategies to address Opioid Use Disorder have greatly improved. In this case, it could fairly be said that all of the deterrence necessary can be gleaned from the knowledge of Dr Sivewright's story and his long struggle with Opioid Use Disorder. We do not consider that the cancellation or suspension of his registration is necessary on this account. 4. Dr Sivewright has done very well for the last four years whilst subject to the conditions imposed by the Medical Council. It was suggested that those conditions should be varied, so that Dr Sivewright could continue to practice subject to the varied conditions. 5. Dr Sivewright sought two variations to his current conditions. He sought to have his testing regime varied so that he can attend to give a urine sample for drug testing twice weekly instead of three times per week. The present testing regime is expensive and time consuming, though Dr Sivewright recognises its value as a check upon him and a routine. 6. We agree that twice weekly urine testing is now appropriate. 7. Dr Sivewright also sought the lifting of condition 3, which is: Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 1. Dr Sivewright sought to have condition 3 lifted on the basis that it would better enable him to service his patients. He expressed a concern that patients who needed Schedule 4 Appendix D drugs, upon being told that Dr Sivewright could not prescribe them, might not attend upon another general practitioner, but might instead do without the medication. 2. There was support for the lifting of this condition from Dr Sivewright's medical team, and the HCCC did not oppose the lifting of the condition. 3. Notwithstanding the supporting evidence, we are not convinced that condition 3 should be lifted at this stage. We believe that a stepped relaxation of the conditions is appropriate, starting with the least impactful change. In saying that, we acknowledge that condition 4 prevents Dr Sivewright from the possession, supply, administration or supply of codeine and other S4D medications. However, we do not consider that the inability to prescribe Schedule 4 Appendix D medication should have a significant impact on Dr Sivewright's practising, and the ability to prescribe from Schedule 4 Appendix D will expose him to a level of risk. After practising for a time with the new testing regime, Dr Sivewright is at liberty to apply for a further relaxation of his conditions. Costs 1. The HCCC sought an order for costs. Dr Sivewright argued that the costs should be apportioned, having regard to the fact that one complaint was withdrawn shortly before the hearing. The HCCC countered that the hearing took less time than estimated, and that both sides had conducted the case to bring about a high degree of efficiency. The HCCC said that the late withdrawal of a complaint had minimal impact upon the costs involved for Dr Sivewright. We agree. 2. The HCCC has been substantially successful in these proceedings. The appropriate order is that Dr Sivewright pay the costs of the HCCC. Conclusion 1. Order: 1. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), Dr Sivewright's registration as a medical practitioner is subject to the following conditions, which are substituted for the conditions previously imposed by the Medical Council: 1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any drug of addiction· (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 3. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 4. Not to possess, supply, administer or prescribe any drug containing codeine. 5. To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered medical practitioners (excluding the subject practitioner): • Where the patients and patient records are shared between the medical practitioners • Where there is always one other registered medical practitioner on site. 6. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the Practice Conditions to the; (a) Medical Director and/or; (b) Principal of Practice and/or; (c) Any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). 7. To authorise and consent to any exchange of information between the Medical Council of NSW, Pharmaceutical Regulatory Unit (Ministry of Health) and Medicare Australia for the purpose of monitoring compliance with these conditions. 8. Not to treat (including prescribe to) himself or immediate family members or their partners. (a) In the event of a medical emergency where there are no other medical services available, he may provide treatment to the above. A medical emergency is an event where it is not possible or reasonable to have a patient with a life threatening or urgent condition, seen by another medical practitioner or transferred to the nearest hospital. The practitioner must notify the Council in writing within 48 hours of the event occurring. 9. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 10. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: (a) The audit is to be held from time to time as required by the Council. (b) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements. The auditor(s) should pay particular attention to documentation of history, examination and management in the medical records. (c) To authorise the auditor(s) to provide the Council with a report on their findings. (d) To meet all costs associated with the audit(s) and any subsequent reports. Clauses not published to the public National Register 1. Not to prescribe for self-medication. 2. Not to self-administer any: (a) prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or (b) narcotic derivative, non-prescription compound analgesic or cold medication; or (c) any drug containing codeine; unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. Within 7 days of being prescribed such treatment from his treating practitioner, the practitioner must: (i) notify the Medical Council of NSW and Council appointed practitioners. (ii) provide written confirmation of the treatment from the treating practitioner. 3. To take any medication as prescribed by his treating practitioners. 4. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a. urine drug screening 2 times a week, and b. quarterly hair drug screening. 5. To comply with the Medical Council's Alcohol screening policy and Participant procedure: CDT screening (as varied from time to time) and attend for CDT screening on the first Monday of each month. 6. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatmen;t (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 7. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 8. To attend for treatment by an addiction specialist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) must provide the Council with the professional details of the treating practitioner. 9. The extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council-appointed practitioners. 10. To attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW. 11. To attend a Medical Council of NSW's Review Interview on a 3 monthly basis, or as otherwise directed by the Medical Council of NSW. 12. To authorise the Medical Council of NSW to forward copies of the s150 decision and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners and to his treating practitioners. 1. Dr Sivewright is to pay the costs of the Health Care Complaints Commission in these proceedings, to be agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2021