Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hollo [2021] NSWCATOD 107 Hearing dates: 1 and 2 June 2021 and by written submissions dated 11 and 15 June 2021 Date of orders: 5 August 2021 Decision date: 05 August 2021 Jurisdiction: Occupational Division Before: Sheahan ADCJ, Principal Member Dr J Aitken, Senior Member Dr H Wilson, Senior Member R Kusuma, General Member Decision: The Tribunal makes the following orders: (1) Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), and noting the Respondent's voluntary surrender of his registration, the Tribunal orders that he be prohibited from making an application for re-registration for a period of three years from the date of these orders; (2) Pursuant to cl 13 of Sch 5D to the said Law, the Respondent is ordered to pay the Commission's costs of these proceedings, as agreed or assessed. Catchwords: HEALTH — professional registration — complaints — medical practitioner found guilty of unsatisfactory professional conduct and professional misconduct — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Cases Cited: Health Care Complaints Commission v Perroux [2011] NSWDC 99 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Health Care Complaints Commission v Wingate [2007] NSWCA 326 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Andrew Hollo (Respondent) Representation: Counsel: A Petrie (Applicant) M Hutchings (Respondent) Solicitors: Health Care Complaints Commissions (Applicant) Avant Law (Respondent) File Number(s): 2020/00302048 Publication restriction: A non-publication order with respect to the name of the patient set out in the schedule to the complaint was made on 20 November 2020. REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (HCCC or the Commission) brought before this Tribunal five complaints against Dr Andrew Hollo (Hollo or the Respondent). 2. All five concerned his care of one particular patient, known in the proceedings as "Patient A", over a number of years from early 2002 to late 2017, but especially after 13 November 2008. 3. Patient A was born on 3 June 1962, had worked as a registered nurse, and had previously consulted Hollo's former partner, Dr Harvey, who left their practice in December 2002 (Ex R1, tab 1, par 23). 4. The Commission's original application was filed with the Tribunal on 19 October 2020. It was amended on 1 June 2021, and the Respondent filed a reply to it on 2 June 2021. 5. A communication breakdown meant that the Panel assembled on 1 June 2021 to commence the hearing, only to find that neither the Respondent, nor anyone acting on his behalf, attended. 6. The hearing was adjourned to commence on 2 June 2021, and both counsel (Ms Angela Petrie for the Commission, and Mr Matthew Hutchings for Dr Hollo) agreed on that day that that hearing would conclude both stages of the matter within the one hearing day. 7. Dr Hollo again did not attend on 2 June 2021. He had retired from his medical practice and surrendered his Australian Health Practitioner Regulation Agency (AHPRA) registration, effective 3 May 2021 (see AHPRA email, dated 1 June 2021, submitted by the Commission, in lieu of a certificate which was to be inserted in the Commission's material). 8. In his statement of 19 April 2021 (Ex R1, tab 1, par 2), Hollo indicated that he was retiring from medical practice "permanently", "due to the subject matter of the five complaints" before the Tribunal, and also health concerns in respect of both himself and his wife (he underwent major surgery for bladder cancer on 13 October 2020, and he says that his wife's health has suffered "a significant decline"). 9. In his 2 June 2021 Reply, he admitted he was guilty of "Unsatisfactory Professional Conduct and of Professional Misconduct". 10. In its written submissions (pars 129-133), the Commission seeks cancellation of the Respondent's registration, and a period of disqualification of "three to five years", submitting (par 136) that such orders are "necessary to protect the public, are in the public interest, and there is a need for general deterrence" in this matter. 11. The Respondent's submissions confirm (par 4) his admission of "all of the substantive facts which underlie the complaints", and (par 6) that his prescribing to Patient A "was inappropriate and ought never to have occurred", and that his relationship with her "plainly exceeded the accepted bounds of a doctor/patient relationship". He "unreservedly accepts" (par 7) the "objective seriousness of his failures", even if they lack (par 8) "any taint of moral obliquity". 12. The Respondent's submissions note (at par 50) the appropriateness of the orders sought by the Commission, but nominate a non-review period of only two years. 13. The Commission further seeks an order (its submissions, pars 137-141) for its costs, but "in the light of the admissions in the [Respondent's] Reply, Dr Hollo does not seek to be heard concerning costs" (his submissions, par 51). 14. Neither counsel called oral evidence, but each tendered the huge amount of documentary evidence respectively filed in advance of both the hearing and the significant change in the Respondent's position (five large folders from the Commission became Ex A1, and three from Dr Hollo Ex R1). 15. The half-day of effective hearing time was occupied by oral submissions. At the very conclusion of the Commission's oral submissions, the Tribunal was handed 50 pages of written submissions by Ms Petrie. Hollo's counsel then made very brief oral submissions, and was granted leave to supplement them in writing within seven days. 16. Those written submissions from the Respondent were received on 11 June 2021, and, on 15 June 2021, the Commission confirmed, by email, that it did not wish to add to its lengthy written submissions of 2 June 2021. The Issues 1. The Commission's application, as filed, stated the following background to each of the five complaints made: "In 2002, the practitioner was working as a general practitioner with a practice on Kia Ora Road, Double Bay, Sydney. In 2005, the practitioner commenced work with Cooper Street Practice also in Double Bay, Sydney. On about 22 March 2002, the practitioner commenced to treat Patient A. The practitioner continued to treat Patient A until about 14 December 2017." 1. Hollo's Reply document included, along with his responses, all the germane elements of the Commission's five-part complaint document, so we will now set that Reply document out in full (with the detail of the amended complaint in italics, and Hollo's responses in block and bold type): "The complaint Complaint One 1. The Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Respondent admits that he is guilty of unsatisfactory professional conduct. Particulars of Complaint One 1. Between about 13 November 2008 and 25 October 2017, the practitioner, on the dates and in the quantities set out in the schedule attached and marked "Schedule B", prescribed to Patient A Morphine Sulphate 30mg/ml parenterally, a Schedule 8 and Type B drug of addiction, where: a) It was prescribed for continuous period of therapeutic use for more than two months and without proper authority contrary to section 28(2) of the Poisons and Therapeutic Goods Act 1966 ("PTGA"); The Respondent admits this particular. (b) In circumstances where he was, or ought to have been, of the opinion that Patient A was a drug dependant person; The Respondent admits he ought to have been of the opinion that Patient A was a drug dependant person. c) He did not perform an appropriate clinical assessment of the patient prior to commencing to prescribe the medications; The Respondent admits this particular. d) He did not seek the advice of any specialist doctor when deciding to continue its use in the treatment of Patient A; The Respondent does not admit this particular. e) He knew or ought to have known by at least 21 May 2011 that Patient A was using Marijuana daily; The Respondent admits this particular. f) He failed to regularly review Patient A's medication regime and consider whether Patient A was or had become a drug dependent person; The Respondent admits this particular. g) The quantities of Morphine Sulphate were grossly excessive and were without adequate or regular review; and The Respondent admits this particular. h) The long term prescription of parental morphine was not appropriate for the treatment of Patient A and did not have an appropriate therapeutic purpose. The Respondent admits this particular. 2. Between about 13 November 2008 and 25 October 2017, the practitioner, on the dates and in the quantities set out in the schedule attached and marked "Schedule B", prescribed Fentanyl (Durogesic) 50mcg/hr or 100mcg/hr and Oxycodone Hydrochloride (Oxynorm) 20mg, both Schedule 8 and Type C drugs of addiction, to Patient A in combination with the prescriptions for Morphine Sulphate 30mg/ml where: a) He did not have proper authority to prescribe the medication from the Director-General of the Department of Health pursuant to section 28 of the PTGA in circumstances where he was or ought to have been of the opinion that Patient A was a drug dependent person; b) He did not perform an appropriate clinical assessment of the patient prior to commencing to prescribe the medications; c) He did not seek the advice of any specialist doctor when deciding to commence to use this combination of drugs in the treatment of Patient A; d) He knew or became aware that Patient A was using Marijuana regularly, if not daily; e) The quantities of each of the drugs identified were grossly excessive and were without adequate or regular review; f) The quantity and combination of Schedule 8 medications prescribed meant there was a real risk that Patient A would suffer adverse side effects and or narcotic overdose. g) The prescriptions were not appropriate for the long-term treatment of Patient A and did not have an appropriate therapeutic purpose. The Respondent admits this particular. 3. Between about 13 November 2008 and 25 October 2017, the practitioner, on the dates and in the quantities set out in the schedule attached and marked "Schedule B", prescribed Morphine Sulphate 30mg/ml, Fentanyl (Durogesic) 50mcg/hr or 100mcg/hr, and Oxycodone Hydrochloride (Oxynorm) 20mg, all Schedule 8 drugs of addiction, to Patient A and, concurrently with these drugs, also prescribed to Patient A Temazepam (Normison) 10mg, Bromazepam (Lexotan) 6mg and Diazepam 5mg, all Schedule 4D special restricted substances, where: a) He did not seek the advice of a specialist doctor when deciding to use this combination of drugs upon commencement of their use in the treatment of Patient A; b) The quantities of each of the drugs identified were grossly excessive and were without adequate or regular review; c) The prescription of the identified drugs was not appropriate for the long term treatment of patient A and did not have an appropriate therapeutic purpose; and d) By doing so, the risk of significant side effects including excessive sedation, respiratory depression and overdose was increased. The Respondent admits this particular. COMPLAINT TWO 1. The Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Respondent admits this particular. PARTICULARS OF COMPLAINT TWO 1. Between about 29 June 2015 and 25 October 2017, the practitioner failed to maintain a professional relationship with Patient A in that he became involved: a) in a social relationship with Patient A; and b) in Patient A's personal and family matters, and by doing so, compromised Patient A's proper care and treatment. The Respondent admits this particular. COMPLAINT THREE 1. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i. Contravened clause 7(1) and Schedule 2, subclause 1(2)(a)-(c) and (3) of the Health Practitioner Regulation (New South Wales) Regulation 2010 (the 2010 Regulation); ii. Contravened clause 6(1) and Schedule 4, subclause 1(2)(a)-(c) and (3) of the Health Practitioner Regulation (New South Wales) Regulation 2016 (the 2016 Regulation). The Respondent admits this particular. PARTICULARS OF COMPLAINT THREE 1. Between about 12 July 2013 and 25 October 2017, the practitioner failed to maintain clear and accurate records of his home visits to, and treatment of, Patient A in that his records did not include: a) Information known to him that was relevant to the patient's diagnosis that was relevant to the patient A's treatment and/or; b) Particulars of any clinical opinion reached by the medical practitioner and/or; c) Any plan of treatment for patient A and/or d) A level of detail that was appropriate to the patient A's case and to the medical practice concerned; and/or e) Sufficient information to allow another practitioner to continue management of the patient A's case. The Respondent admits this particular. COMPLAINT FOUR The Practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ii. engaged in improper or unethical conduct relating to the practice of medicine. PARTICULARS OF COMPLAINT FOUR 1. On the dates set out below, the practitioner, contrary to clause 81 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) and NSW Health Guideline "Legal Requirements for Authority to Prescribe Drugs of Addiction in New South Wales (NSW Health Pharmaceutical Services Branch)" for Schedule 8 drugs of addiction, issued prescriptions either by facsimile, post, or through Patient A herself, for morphine sulphate where there was no medical emergency and outside of the time frame permitted. Year Dates 2015 14 August 2015, 15 October 2015, 21 November 2015, 26 November 2015, 8 December 2015 2016 25 February 2016, 21 March 2016, 21 May 2016, 13 June 2016, 6 July 2016, 9 September 2016, 24 September 2016, and 3 October 2016 The Respondent admits that on the above dates morphine sulphate was dispensed by a pharmacist in the absence of a prescription. The Respondent does not admit that he directed the supply of the morphine sulphate on these dates either orally, by telephone, by electronic mail or by facsimile prior to the drugs being dispensed. Subsequent to the drugs being dispensed on the above dates, the Respondent faxed prescriptions for Morphine Sulphate to the pharmacist and provided the original prescription by post or hand delivery. COMPLAINT FIVE The Practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: iii. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or iv. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. The Respondent admits that he is guilty of professional misconduct. PARTICULARS OF COMPLAINT FIVE 1. Complaints One, Two, Three and Four and the particulars thereof are repeated and replied upon individually and cumulatively. The Respondent makes the same admissions and denials to the particulars as are made above." The Respondent 1. Dr Andrew Hollo was born in Hungary on 29 December 1945. He graduated MBBS from Sydney University in 1971, and commenced general practice in 1978. As noted above, from 2002 he practised in Double Bay, moving in 2005 to the Cooper Street Clinic general practice. 2. His "books [had] been closed to new patients for around the last five to six years" prior to his recent retirement (see his 19-page statement of 19 April 2021 (Ex R1, tab 1), at par 31). 3. He refers in his statement to his interest in care of the elderly, diabetes, clinical education, and acupuncture. 4. He also has "a general interest in managing patients with musculoskeletal pain" (par 37), and we note that pain was a major issue for Patient A while she was under his care. 5. He was also recognised as a "prominent euthanasia advocate" (Ex A1, tab 32). 6. On 26 March 2003, he was charged with "cause poison to be taken with intent to commit murder", the alleged victim being one of his elderly patients. 7. The Medical Board of New South Wales conducted a "Section 66 Inquiry" on 4 June 2004. It identified issues with both his record keeping, and "failure to maintain professional boundaries", and imposed conditions on his registration (Ex R1, tab 1, pars 53-55, and see again AHPRA email, dated 1 June 2021). 8. Hollo relocated to the Cooper Street Clinic in January 2005 (par 57). 9. The 2003 criminal charge was dismissed by the magistrate on 4 November 2004, and, in August 2005, the Medical Board removed the conditions on his registration (par 56). 10. On 21 October 2017, Patient A was admitted to hospital with an apparent overdose. The police seized large quantities of pharmaceutical drugs from her home (Ex A1, tab 20, and HCCC submissions, par 39), and the Pharmaceutical Regulatory Unit (PRU) contacted Hollo about her on 23 November 2017 (statement, par 46). On 24 November 2017, the PRU attended upon him at the Clinic, and, on 14 December 2017, he attended the PRU for interview (pars 47 and 49). 11. He admits (par 48) that he "was not previously aware" of his obligations to obtain authorities to dispense when prescribing an "injectable opioid" for more than two months, and/or so prescribing "for a drug dependant patient". 12. The PRU recommended that he voluntarily apply to surrender his "authorities to prescribe s 8 and s 4D drugs", but he declined to do so (par 50), and colleagues in the Clinic supported his decision (par 51). 13. Eventually, on legal advice, he surrendered those authorities on 13 January 2018 (par 52), and focussed after that on providing his pain patients with alternative strategies (par 37), including referrals to pain/addiction specialists (par 44). 14. The PRU informed the Medical Council that Hollo "had been prescribing inappropriately for patients, including Patient A", and the Council convened a s 150 Inquiry on 23 January 2018 (par 58). 15. The panel sitting on that inquiry, as already noted, imposed conditions on his registration (par 59). He says (par 60) that he has "fully" complied with those conditions, and (pars 61-66) that he has learnt "a lot" from the mandated supervision. 16. On 9 May 2019, the Council declined his application that it vary those conditions (par 68). 17. It is to be noted here that the Medical Council's s 150 decision found (1) that Hollo's prescribing for Patient A was "reckless", "dangerous", "extreme", "inexplicable", and "caused harm" (Ex A1, tab 4, p 15), (2) that his relationship with her went beyond acceptable boundaries (p 16), and (3) that his record keeping was "poor in the extreme" (p 17). Dr Hollo and Patient A Generally 1. Hollo's statement (Ex R1, tab 1) deals at length with Patient A. 2. He first saw her on 22 March 2002, and became her "primary treating GP" from the end of 2002 until 14 December 2017 (pars 69-72), with the frequency of her attendances increasing over the years (par 73). 3. In that period, Patient A was aged 40-55, and Hollo 57-72. 4. Patient A's is a tragic story which we will not repeat here in detail, save to say that she had not worked for many years, and had a long history of chronic pain, caused by several accidents, and a series of serious illnesses and surgeries (pars 74-90). 5. Hollo describes the 21 October 2017 overdose incident as "an intentional overdose of her pain medication" (par 122), and as a "suicide attempt" (par 124). 6. He records (par 124) that one of her major treating specialists over the years (from at least 15 March 2001, when Dr Harvey sent her to him – par 96), Dr Milton Cohen, a Consultant Physician in Rheumatology and Pain Medicine, noted at the end of 2017: "… that there is no pharmacological solution to Patient A's very complex pain problem, which is fundamentally existential in origin, 'a fact that I failed to recognise adequately two decades ago'". 1. Hollo told Patient A of his visit from the PRU, and saw her for the last time on 14 December 2017 (par 127). Hollo's Prescribing 1. Hollo's statement recounts at length (pars 91-121) his prescribing of medication for Patient A, including benzodiazepines, and opioids (including morphine injections). He admits (a) being aware of Patient A's self-injecting (par 113), (b) conducting home visits on a weekly basis from around mid-2016 (par 120), and (c) poor record keeping (par 121). 2. He states (pars 91-95) as follows: "91. I commenced prescribing benzodiazepines for Patient A from around January 2002. I prescribed Temazepam to help Patient A sleep, Diazepam as a muscle relaxant and Bromazepam to assist in managing anxiety. I did not intend these drugs to be used concurrently, however, I accept that there were occasions when Patient A did so. 92. I continued prescribing benzodiazepines for Patient A over a period of many years on an intermittent basis. 93. In relation to the opioids I prescribed Patient A, the Durogesic, Oxynorm/Oxycodone and Morphine were all prescribed to help Patient A manage her chronic and acute pain. Patient A also took Oxynorm on occasions for her migraines. 94. I first prescribed Oxynorm for Patient A at her initial consultation with me on 22 March 2002. Patient A presented with a fractured toe and I prescribed the Oxynorm for pain. 95. At the time I commenced treating Patient A, she was already using Durogesic patches prescribed for her by Dr Milton Cohen…" 1. Yet his statement does not acknowledge that the evidence before us, namely his prescription records (Ex A1, tab 24, p 42), shows that (HCCC submissions, par 36): "(i) The Respondent prescribed morphine injections for Patient A on the day of her admission to St Vincent's Hospital; (ii) The Respondent prescribed morphine injections for Patient A six times in the week of her admission; and (iii) The Respondent prescribed morphine injections for Patient A on 23 October 2017 and 25 October 2017 after her admission." 1. Hollo notes (statement, par 128) that he was "shocked by the quantity of medication" that he had been prescribing for Patient A, as identified by the PRU, and he admits (par 129) that he was "not aware" of the legislative requirements for legal prescription of Schedule 8 medications. 2. He also admits that "on many occasions" he wrote prescriptions for Patient A without having seen her – by February 2017, he was in the habit of writing a morphine prescription for her "each day… whether I saw her or not" (par 131), and had sanctioned undesirable dispensing practices by her local pharmacy, often in breach of regulations and guidelines (pars 132-133, and see HCCC submissions, pars 101-112). 3. At the time of our hearing a decision in proceedings against Patient A's pharmacist from September 2015 was reserved (HCCC submissions, par 33). The pharmacist has since been reprimanded by this Tribunal: see Health Care Complaints Commission v Tran [2021] NSWCATOD 82. 4. Hollo says (par 137): "I deeply regret not taking the time to step back and conduct a full review of my prescribing for Patient A and to consider the impact my prescribing was having on her (and the possibilities of polypharmacy intoxication). Unacceptably, I had no system in place to properly monitor how much medication I was prescribing for Patient A and I lost track of the quantities and combination of drugs I was prescribing. I note that I was not using the Best Practice software optimally and should have been able to monitor Patient A's medications with a more proficient level of use of that software." 1. He continues (par 139): "However, I never followed through with my advice to Patient A to cut back, I did not insist on a withdrawal regime to reduce Patient A's medication and I did not insist on her attending pain specialists. I was not able to take the tough steps necessary to reduce Patient A's medication use. I allowed my pity for Patient A and her circumstances, and my desire to help her, to cloud my medical judgment". 1. On the question of her possible accumulation of excess supplies, Hollo goes on to say (pars 140-145): "140. On one occasion during a home visit in 2017, Patient A gave me a box containing packs of Oxynorm capsules. The medication had passed its expiry date. I took the box of medication back to the Clinic and disposed of it. I did not otherwise notice any excess supplies of any drugs during the home visits I conducted or become concerned that Patient A may have been hoarding her medication. 141. … I should have questioned her further about … excess supplies of any other medication … 142. If I had taken the step of auditing my prescribing to Patient A I would have become aware that she could not possibly be taking all the medication I prescribed for her. I would have then considered what she may be doing with the excess medication. I would also have taken immediate steps to reduce the amount of medication I was prescribing for Patient A with the assistance of pain management and other specialists and an inpatient admission if required. 143. I acknowledge that I should have realised that Patient A was drug dependant. During the years I was prescribing for her, I thought Patient A had a genuine need for the medication I was prescribing. However, given the quantity and dosage of medication I was prescribing for Patient A, it should have been clear to me that she was drug dependant. 144. I was aware that Patient A used cannabis occasionally, however, I did not appreciate the extent of Patient A's use. I acknowledge that I should have been aware of this following receipt of a report sent to me by Dr Jacobs … [which] refers to Patient A using marijuana every day and having a cannabis dependency. 145. During the years I was prescribing for Patient A, it was my opinion that she was suffering chronic pain and needed pain medication on an ongoing basis. However, I did not make a full review of all the medication I was prescribing for Patient A. I did not properly consider whether my prescribing for Patient A was assisting her. In hindsight, considering the quantity and combination of drugs I was prescribing for Patient A over the years, it is clear to me that my prescribing for Patient A was very harmful and was not helping her at all." 1. The Tribunal notes at this point that Hollo's CV (Ex A1, tab 15) records that, from 1995 to 2009, he was the GP representative on the St Vincent's Hospital Drug Committee. "Boundary" Issues 1. Hollo's statement goes on (pars 146-154) to deal, quite frankly, with his failure to maintain appropriate professional boundaries with Patient A, allowing himself to become too involved in her personal affairs, and her to become reliant upon him for social interaction (as well as medical treatment) during their consultations. 2. He denies any romantic aspect to their close friendship, despite, for example, affectionate comments made in emails etc, and the lengthy periods of time they spent together. In one document she said that she did not have anyone she could trust except him, and she signed it "Love … [A] xx" (Ex A1, tab 37, p 81). 3. Despite his long years in practice, he did not fully understand "what maintaining professional boundaries involved and was not alert to the smaller incremental interactions with patients that may result in a relationship that breaches professional boundaries" (par 153). 4. He concedes that he "lost perspective", and "could no longer make the tough decisions" needed in respect of her medical care, especially her pain relief (par 154). Record Keeping 1. Hollo's statement says (pars 156-157): "156. I was very embarrassed when I reviewed my medical records relating to Patient A. The records are not representative of the general standard of my medical records for patients. I think my records for Patient A reflect that I had resigned myself to simply continuing to prescribe for her, without having any clear management plan. 157. On many occasions I did not record any details of my consultations with Patient A, but simply noted any referrals or prescriptions written. I often did not record my examinations or assessments for Patient A and I did not always record details of Patient A's presenting symptoms." Remediation Efforts 1. Hollo says (par 43) that, following the PRU intervention, he and his colleagues in the Practice collaborated on making "changes in [their] practice policies in relation to prescribing" (as detailed in par 44). 2. As noted above, he surrendered his relevant prescribing authorities on 19 January 2018 (par 52). 3. He also asserts (par 60) that he was "fully compliant" with conditions imposed upon his registration. 4. He undertook an online medical records course, and consulted a risk adviser regarding "the requirements for medical records" (par 158). He records (pars 159-160) that the Medical Council conducted records audits in June 2018 and July 2019, and found his records satisfactory, noting improvement in them in the intervening year. 5. The risk adviser prepared an education plan for him in 2018, and he says he completed it (pars 161-162). 6. Since 1 October 2019, Hollo has been regularly consulting a psychiatrist, Dr Michael Diamond, who is well known and respected in this Tribunal, and had been involved in the Section 66 Inquiry in 2004. 7. Hollo says that Dr Diamond has proven helpful to him (pars 165-171, and see Dr Diamond's report dated 17 April 2021 in Ex R1, Vol 3, tab 5), enabling him to "display" to the Tribunal (at least in pars 172-175) insight, and remorse, in respect of his management of Patient A. 8. Regrettably, the Respondent's decision not to appear at this hearing has precluded this Tribunal from testing and appraising the veracity of those assertions, and of his limited denial and non-admissions. 9. In addition, the HCCC identifies, as already noted (submissions, pars 36-37), false evidence in Hollo's statement (par 125) which he would have had to defend had he appeared (see [45] above). 10. We note, however, that Dr Diamond opined that Hollo's appearing at this hearing may have damaged his psychological health. Hence, we draw no adverse inference against him for his non-appearance, and we appreciate, to his credit, his admissions, concessions, surrender of registration, and voluntary retirement from practice, and the positive tenor of Dr Diamond's report. 11. We also acknowledge that Hollo's entire professional career should not be viewed solely through the prism of his care of Patient A, but we acknowledge that the Court of Appeal said, in Health Care Complaints Commission v Wingate [2007] NSWCA 326: "If a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." 1. His failure to appear before us leaves unchallenged the report from the Commission's expert, Dr Emery Kertesz (Ex A1, tab 7, and Respondent submissions, par 9), and we accept it. 2. It also leads the Tribunal, on the evidence not contradicted, to find against the Respondent in respect of both Complaint One, Particular 1(d) (HCCC submissions, par 62), and those matters not admitted in Complaint Four (HCCC submissions, pars 88-115). 3. Nonetheless, in the absence of fresh oral evidence from Hollo, we have had regard to his evidence before his 23 January 2018 s 150 hearing (Ex A1, tab 3, pp 22-65, and see HCCC submissions, par 42). Discussion 1. The paramount concern of the Health Practitioner Regulation National Law (NSW) (the National Law), and this Tribunal, is the protection of the public by ensuring that only suitably trained and qualified health practitioners, who practise in a competent and ethical manner, are registered. 2. Section 139E defines "professional misconduct" of a registered health practitioner to mean: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. To adapt the words used in Health Care Complaints Commission v Perroux [2011] NSWDC 99, at [18], we have determined that Hollo's contraventions, when considered as a whole, are clearly of "a sufficiently serious nature to justify suspension or deregistration". His counsel conceded as much (submissions, par 38). 2. The Tribunal's orders must not only deter the practitioner from repeating his or her misconduct, but also deter others who might be tempted towards similar behaviour. 3. Had Hollo not surrendered his registration voluntarily, we would certainly have ordered its cancellation, and, although he says he does not wish to return to practice, we must turn our attention to the period during which he is to be prohibited from seeking any re-registration. 4. We acknowledge that Hollo is now aged 75 years, and in fairly poor health. 5. Such concessions as he has made in these proceedings came only with the benefit of exposure and/or hindsight, and his immediately relevant offending in 2008-2017 repeated failings he had demonstrated and acknowledged earlier, and been warned about as early as 2003-2004 (Ex A1, tab 32). 6. The character references on which he relies (Ex R1, tab 3) do not overcome the enormity of the failures that Hollo demonstrated throughout 15 years of treating Patient A – failures which consistently compromised the care and treatment of her complex range of health challenges, exacerbated her drug dependence, and made possible an overdose, in respect of which he admits (par 136) discussing with her her "suicidal ideation". 7. We find proven, in accordance with both the Respondent's admissions, and the evidence presented by the HCCC, all of Complaints One to Four and their particulars, and, as per Complaint Five, we also find the Respondent guilty of professional misconduct pursuant to s 139E. Conclusion 1. We have determined that, in all the circumstances we have recounted, three years is the minimum suitable period we should stipulate as the non-review period. 2. In accordance with established principles, and cl 13 of Sch 5D to the National Law, we have also concluded that he should be ordered to pay the Commission's costs. Orders 1. The Tribunal makes the following orders: 1. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), and noting the Respondent's voluntary surrender of his registration, the Tribunal orders that he be prohibited from making an application for re-registration for a period of three years from the date of these orders; 2. Pursuant to cl 13 of Sch 5D to the said Law, the Respondent is ordered to pay the Commission's costs of these proceedings, as 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: 05 August 2021