Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sriskanda (No 2) [2021] NSWCATOD 87 Hearing dates: 02 June 2021 Date of orders: 22 June 2021 Decision date: 22 June 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr H Haikal-Mukhtar, Senior Member Dr G Yeo, Senior Member J Houen, General Member Decision: The Tribunal, having found that each of Complaint One to Complaint Five inclusive is established, makes the following orders: (1) The registration of the respondent as a medical practitioner is cancelled with effect from seven days after the date of these orders; (2) The respondent is prohibited from making any application for re-registration for a period of two years from the date of these orders; (3) The respondent is to pay 85% of the applicant's costs in respect of the proceedings as agreed or assessed in default of agreement. Catchwords: HEALTH — professional registration and discipline — registration — disciplinary sanction Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) (repealed) Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Cases Cited: HCCC v Iskander [2015] NSWCATOD 30 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 82 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sriskanda [2021] NSWCATOD 42 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Urmila Sriskanda (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/00252812 Publication restriction: The disclosure of the names of the patients set out in the schedule to the Complaint, together with any information or material which could identify these persons, is prohibited pursuant to an order made on 14 April 2021. REASONS FOR DECISION Background 1. On 14 April 2021 the Tribunal published its reasons for decision in respect of findings of unsatisfactory professional conduct and professional misconduct as alleged in the complaints made against the respondent: see Health Care Complaints Commission v Sriskanda [2021] NSWCATOD 42. These proceedings will be hereafter referred to as the Stage 1 hearing. 2. The Tribunal is now required to determine the appropriate disciplinary sanction to be imposed upon the respondent in view of its findings made above ("Stage 2 hearing"). 3. As referred to at [3] to [7] of the above reasons, the respondent elected to take no part in the proceedings before the Tribunal when the matter came on for hearing on 22 and 31 March 2021. Accordingly, having been satisfied that the respondent was aware of the hearing dates and had made a deliberate decision not to participate in the proceedings, The Tribunal proceeded, pursuant to s 165J(3) of the Health Practitioner Regulation National Law (NSW) ("the National Law") to hear the proceedings in the absence of the respondent. 4. In respect of the Stage 2 hearing, the respondent has again signified to the Tribunal that there will be no appearance by her or on her behalf. Accordingly, the Tribunal will proceed without having the benefit of any assistance from the respondent. Complaint findings 1. The findings made in respect of the various complaints heard during the Stage 1 hearing establish that the respondent prescribed drugs inappropriately; prescribed excessive quantities for varying periods; failed to keep appropriate medical records as required by Sch 2 to the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) (repealed) and Sch 4 to the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW); did not take timely steps to obtain specialist assistance; and disclosed confidential information provided by a patient to another patient. Inappropriate prescribing 1. With respect to the inappropriate prescribing, the applicant has made extensive submissions. The Tribunal adopts such submissions and repeats them hereunder: "The Respondent's conduct 20. The Respondent's inappropriate prescribing was described by the Tribunal at [102] as 'gross, dangerous and reckless'. In addition to the sustained period of the conduct and number of patients, the Commission notes the following factors which show the seriousness of that conduct: i. Non-therapeutic prescriptions; ii. No adequate specialist assistance; 21. Dr Deed, citing the Australian and New Zealand College of Anaesthetics Australian and New Zealand College of Anaesthetists & Faculty of Pain Medicine ('ANZCA') 2010 'Statement regarding the use of opioid analgesics in patients with chronic non-cancer pain', made the following observations about the appropriate therapeutic dosages of opioid medication: "Caution is warranted at oral morphine equivalent daily doses (oMEDD) >40mg [20, 21, 59, 60, 61] and doses above oMEDD of 100 mg [61] should prompt reassessment and specialist advice (Appendix B). Particular caution is required in prescribing transdermal fentanyl patches, as the lowest available dose (12mcg/hr) is close to the oMEDD 40mg threshold. …. To minimise risks, opioids should be prescribed at the lowest effective dose for the shortest clinical timeframe". 22. Regarding the reason for such caution Dr Deed, citing the NPS Medicinewise document 'Risks of prescribing high-dose opioids: Information for health professionals' (May 2016), noted a finding of an 8.9-fold increase in overdose risk (12% fatal) for patients receiving an oMEDD of greater than 100mg and a 2.6-fold risk of clinical depression from a dose escalation to an oMEDD of greater than 120mg. Similar findings are noted in Part C-1 of the RACGP Guideline, which [states] that "there is a three-fold increase in mortality when comparing high-dose opioid (>200mg oral morphine equivalent daily dose [OMEDD]) relative to low-dose opioids (<20mg OMEDD)". 23. In this case, the Respondent prescribed amounts of S8 drugs grossly in excess of 40mg oMEDD without caution and without specialist assistance, over sustained periods. For example, for Patient E the daily dose of oxycodone over a 2-month period was an oMEDD of 1320mg, for Patient F the daily dose of oxycodone over 10-month period was an oMEDD of 816mg and for Patient D the daily dose of oxycodone and fentanyl over a 12-month period was an oMEDD of 325.5mg. iii. Prescribing without assessment; iv. Prescribing without proper indication 24. Dr Deed, citing Part C-1 of the RACGP Guideline, stated that any prescription of opioids "should be based on a comprehensive biopsychosocial-based assessment; a diagnosis; thoughtful consideration of the likely benefits and risks of any medication, as well as of non-drug alternatives interventions; and a management plan derived through shared decision making and continual clinical monitoring". Part B of the RACGP Guideline applies the same principle to prescribing of benzodiazepines. 25. In this case, the Respondent prescribed significant amounts of S8 and S4D drugs without appropriate assessment. Patients received prescriptions when they presented with family or personal problems (for example, on 13 occasions for Patient A and 18 occasions for Patient D), needing scripts (for example, on 27 occasions for Patient D and 28 occasions for Patient F) and presenting with minor ailments (for example, Patient D received prescriptions for weight loss, asthma, hand stiffness, balanitis and nightmares, amongst others). 26. Particularly egregious is the Respondent's prescribing of S8 and 4D drugs to patients upon request or in their absence. For example, Patient C was prescribed oxycodone by email or fax following her request on 17 occasions, Patient F was prescribed S8 and/or S4D drugs on 39 occasions when he claimed his prescription or tablets had been lost, stolen or damaged, and Patient F also received prescriptions on 10 occasions when he requested specific drugs. v. Concurrent prescribing 27. Part C of the RACGP Guidelines notes that 'Patients who use two or more psychoactive drugs in combination (particularly benzodiazepines and opioids) and those with a history of substance misuse may be more vulnerable to major harms'. Despite this clear guideline, the Respondent placed four patients at risk of major harms by prescribing oxycodone in conjunction with S4D drugs (all benzodiazepines) over a sustained period. vi. Continuing to prescribe despite drug seeking behaviours 28. One of the most serious aspects of the Respondent's prescribing is that it continued despite clear evidence of drug-seeking behaviour by Patients A to I. For example: 28.1. Patients A, B and C were at times banned from the practice; 28.2. Patients C and E were redirected to other doctors; 28.3. Patients B and E were identified as doctor shopping or drug seeking by other practitioners; 28.4. Patient B was denied scripts by three different doctors; 28.5. Patient C notified the Respondent that she was on a wait list for a detoxification clinic; 28.6. the Respondent had called the PSIS and been notified Patient D was a doctor shopper and also diagnosed him with opiate dependence; 28.7. two calls were received from local pharmacies about the validity of prescriptions given Patient H's behaviour; 28.8. the Respondent prescribed alprazolam to Patient H after being informed by the PRU that she needed an authority to do so; and 28.9. the Respondent prescribed oxycodone to Patient B on the same day after she had been diagnosed with dependence and referred to the OTP by a more senior colleague. vii. Failure to maintain proper records 29. Dr Deed, citing Part A of the RACGP Framework, noted that practitioners should keep records of 'the medication prescribed, dose, frequency, and contemporaneous records supporting your clinical judgment to substantiate that the medication is clinically appropriate'. 30. In this case, the Respondent continuously failed to maintain proper clinical records, placing the future treatment of Patients A to I at risk. This is particularly important in this case given the large doses of S8 and/or S4D medication that the Respondent prescribed to those patients. viii. Failure to review records prior to prescribing 31. Further to the deficiency of the Respondent's own medical records Dr Deed, citing Part A of the RACGP Framework, advised that practitioners should 'employ universal precautions when prescribing drugs of dependence or addiction', including actively seeking existing records. 32. In this case, the Respondent admitted to the s 150 Panel that she does not routinely read patient medical records. This was particularly serious given previous indications of drug-seeking behaviour that were evident in the patient records for Patients A to I. For example, a Prescription Shopper Information Service ('PSIS') report was contained in the records of Patient A, Patient C was previously diagnosed with drug dependence and noted as being drug-seeking, Patient D had a lengthy history of excessive use of pain medication and Patients A, F and G had previously been refused prescriptions." (Footnotes omitted.) 1. The Tribunal agrees with the factual observations made above. Appropriate prescribing practices are of paramount importance in medical practice as was recognised in Health Care Complaints Commission v Nguyen [2018] NSWCATOD 82 where the Tribunal at [47] referred to the general principle considered in Spicer v New South Wales Medical Board (Court of Appeal (NSW), 19 February 1981, unrep) where Hope JA (with whom Reynolds and Hutley JJA agreed) said: "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner." Failure to maintain proper records 1. It is apparent from the findings made by the Tribunal that the respondent repeatedly failed to maintain proper clinical records. As a result, the future treatment of Patients A to I was placed at risk, especially in the situation where large doses of Schedule 8 and/or Schedule 4D drugs were prescribed. Failure to review records before prescribing 1. The respondent admitted to the s 150 panel that she did not routinely read patient medical records. In view of the drug-seeking behaviour displayed by several of the patients, namely Patients A to I, this conduct is particularly serious. A Prescription Shopping Information Service report was contained in the records of Patient A. Patient C was previously diagnosed with drug dependence and noted as being drug-seeking. Patient D had a long history of excessive use of pain medication. Patients A, F and G had previously been refused prescriptions yet the respondent continued to prescribe for them. 2. Although the respondent did not attend either the Stage 1 or Stage 2 hearings, the applicant correctly points out that the respondent provided oral and written accounts to the Pharmaceutical Regulatory Unit, the Medical Council of New South Wales and the applicant. The submissions of the applicant state their position as follows: "34. In her interview with the PRU, the Respondent is recorded as having made the following admissions relevant to her general practice: 34.1. she would prescribe to patients on request if they had previously been managed by another doctor; 34.2. she would review records from her practice and would only occasionally request records from other prescribers, although she would prescribe before receiving them; 34.3. she issued 3 prescriptions of alprazolam to Patient H after being informed by the PRU she needed an authority to do so, but 'it did not come to her mind when she did it'; 34.4. when asked whether she was aware she prescribed Patient E [an] oMEDD of 1300mg oxycodone, she advised that he 'had never presented to her in a drowsy state'; 34.5. she probably should have thought of the possibility of diversion for doses such as an oMEDD of 1300mg, but believed her patients as 'they seemed genuine' and 'she did not keep track of her prescribing with regards to the dose and interval'; and 34.6. she did not think she had escalated Patient F's dose of oxycodone, but agreed when showed records showing it increased from 40mg to 40mg with 80mg. 35. In her evidence to the s150 hearing, the Respondent made the following comments relevant to her prescribing practices: 35.1. she had previously been warned by the Council not to prescribed benzodiazepines concurrently with opioids; 35.2. some of the patients were too complicated for her and she was 'out of depth'; 35.3. she doesn't always read previous patient notes; 35.4. Patient I would request drugs by name and she was 'aware that prescribing more than one benzo is potentially dangerous' and felt that, "In some way what I did wasn't really clinically justified"; 35.5. she did think of Patient I having problems with addiction, but "It didn't sort of lead me to any specific actions"; 35.6. she was unaware of legal requirements about prescribing S8 and S4D drugs to OTP patients, despite having completed an OTP prescribing course in November 2017; 35.7. she had previous trouble with prescribing as a Registrar in 2012; 35.8. oMEDD had been mentioned in an online opioid prescribing course she completed, but prior to that time she was, "just kind of approximating doses in my mind"; 35.9. at the time of her prescribing to the patients in the PRU report, although "I knew they were big doses", she did not think of possible drug diversion; 35.10. prior to meeting with the PRU, she did not think a private script was more of a risk than a PBS script. 36. In her letter to the Commission dated 15 May 2019 (through her legal representatives), the Respondent provided various reasons for her inappropriate prescribing to Patients A to I, including: 36.1. she was too trusting; 36.2. she was manipulated; 36.3. patients were difficult to manage; 36.4. she was misguided in attempting to help; 36.5. a previous practitioner had prescribed opioids; 36.6. on occasion she did take steps to obtain specialist assistance or refer for imaging and allied health support; 36.7. she has an issue with asking for assistance; and 36.8. she did not have the support of a supervisor. 37. The Respondent also advised that she was 'deeply ashamed of her conduct' and the care she gave to Patients A to I. She indicated that she is 'working on her assertiveness and being less isolated' and has completed an RACGP course on prescribing benzodiazepines, a Cognitive Institute patient communication course, and had enrolled in a course on clinical ethics and dealing with difficult patients." (Footnotes omitted.) Breach of confidentiality 1. The expert retained by the applicant, Dr Deed, referred in his report to the requirements of the publication of the Medical Board of Australia entitled "Good Medical Practice: a Code of Conduct for Doctors in Australia" and to the strict confidentiality expected of medical practitioners. The disclosure by the respondent constituted a gross breach of trust placed in her as a medical practitioner. Remorse and insight 1. The applicant correctly and in fairness to the respondent made the following submissions: "43. The Respondent did not attend the hearing or provide any written Reply to the Complaint. However, she provided both oral and written accounts to the Council and the Commission. 44. In her statement of 31 January 2019, the Respondent advised that she was 'very embarrassed' and acknowledged that she should have obtained Patient J's consent to disclose the information, but that Patient K 'was very convincing in that she already knew about the affair and had confronted the lady already'. 45. In her evidence to the s150 hearing, the Respondent made the following relevant comments to delegates: 45.1. she may have been less cautious in her consultation with Patient K as she had another doctor observing; 45.2. she did not think to terminate the therapeutic relationship due to a conflict of interest; 45.3. she was not thinking about confidentiality during the consult as she was concerned for Patient K and also her potential to harm Patient J or the woman with whom he had had the extramarital affair; 45.4. regarding the disclosure, "I wouldn't say it as very unprofessional. I would say in terms of my judgment I think I could have done better", and "I could understand that concept of it a bit better"; and 45.5. she had not read the Code." (Footnotes omitted.) Treatment of Patient K – Complaints Three and Four 1. Whilst the explanation provided by the respondent in her letter to the Commission was that she was concerned that there was a risk of suicide to Patient K, it does not appear that the respondent adequately examined and prepared any ongoing management plan for Patient K which could have assisted in reducing her distress or provide treatment. The respondent informed the s 150 panel: "I suppose my plan was to kind of sort of offer her to sort of see – refer her to a psychologist which she declined and said she was already under treatment" 1. While such explanation provides an understanding of her conduct, it does not justify it. Protective orders 1. The Tribunal has as its paramount consideration the health and safety of the public. No explanation has been offered by the respondent regarding the matter of greatest concern to the Tribunal, namely the gross overprescribing of opioid drugs. It has not been indicated to the Tribunal whether, for example, the respondent was at the time of prescribing labouring under some difficulty which caused her to prescribe aberrantly, or whether there was some other cause for such conduct. In the absence of such evidence, the Tribunal is left to speculate upon the reasons for such a gross departure from the accepted standards. In HCCC v Iskander [2015] NSWCATOD 30 the Tribunal said at [174]: "Generally, it is a pre-requisite for the making of an order cancelling a practitioner's registration that there is a finding that the practitioner is probably currently unfit to practice [sic] and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna [2014) NSWCATOD 31; HCCC v Jamieson [2014] NSWCATOD 56)". 1. The Tribunal is guided by the principles referred to by the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA with whom Basten and Emmett JJA agreed as follows: "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. The Tribunal, on the evidence before it, is satisfied that the respondent is not competent, nor fit, to practise medicine. No explanation has been offered regarding, nor any defence raised to, the conduct complained of. The Tribunal is satisfied that the respondent could pose a risk to the health and safety of the public if permitted to practise without adequate remediation. No evidence has been filed to suggest that the respondent has any insight into her conduct, nor is there any indication of remorse. There has been no offer to engage in remediation strategies by undertaking further training in the management of chronic pain, drug dependence, the prescribing of Schedule 8 and Schedule 4D drugs and relevant regulations for such prescribing and medical record keeping, and by working under close supervision with the opportunity to discuss challenging patients. Such measures might equip the respondent to be considered for re-registration. 2. The threshold which would authorise the Tribunal to suspend or cancel registration pursuant to s 149A of the National Law has been satisfied given the finding that the respondent is guilty of professional misconduct and is not competent to practise medicine: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] In the circumstances, the Tribunal has decided to cancel the registration of the respondent as a medical practitioner and to direct that no application can be made for re-registration for a period of two years. Costs 1. The principles establish that a successful party is entitled to have an order made in its favour against an unsuccessful respondent that costs be paid by the latter. An order for costs is not intended to be not punitive, but is solely compensatory. The principles concerning costs in such matters are considered by the New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]–[46]. 2. As the applicant has been successful in its application there is no basis to depart from the provisions of cl 13 of Sch 5D to the National Law, and as such the respondent will be ordered to pay 85% of the costs of these proceedings as sought by the applicant. Orders 1. The Tribunal, having found that each of Complaint One to Complaint Five inclusive is established, makes the following orders: 1. The registration of the respondent as a medical practitioner is cancelled with effect from seven days after the date of these orders; 2. The respondent is prohibited from making any application for re-registration for a period of two years from the date of these orders; 3. The respondent is to pay 85% of the applicant's costs in respect of the proceedings as agreed or assessed in default of agreement. ********** 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 June 2021