Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Jaffer [2021] NSWCATOD 156 Hearing dates: 24, 25 and 26 May 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr C Newberry, Senior Member Dr H Haikal-Mukhtar, Senior Member Honorary Associate Professor P Macneill, General Member Decision: 1 Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the patients referred to as Patient A, Patient B, Patient C, Patient D, Patient E, Patient F, Patient G and Patient H in the Complaint forming part of the Application in this matter is prohibited. 2 Under s 149C(1)(b) of the Health Practitioner Regulation National Law Dr Jaffer's registration as a medical practitioner is cancelled. 3 Under s 149C(7) of the Health Practitioner Regulation National Law, an application for the review of Order (2) may not be made until after three years from the date of this decision. Catchwords: OCCUPATIONS — Medical practitioners — Misconduct and discipline — Unsatisfactory professional conduct – Professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Drugs Act 1966 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 Health Practitioner Regulation (New South Wales) Regulation 2016 Poisons and Therapeutic Goods Regulation 2008 Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mohammed Jaffer (Respondent) Representation: Counsel: I Chatterjee (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2020/00284337 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication of the names of Patient A, Patient B, Patient C, Patient D, Patient E, Patient F, Patient G and Patient H in the Complaint forming part of the Application in this matter is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission ('the HCCC') has brought an application in the Tribunal for disciplinary action against Dr Jaffer, a general practitioner, under the Health Practitioner Regulation National Law (NSW) (the National Law). 2. The Complaint document which forms part of the HCCC's application comprises ten complaints of unsatisfactory professional conduct and one complaint of professional misconduct against Dr Jaffer. 3. At the hearing of the matter, the HCCC relied upon three volumes of documents which included the documentary history of the matter, an expert report from Dr Howle, an independent general practitioner, clinical medical records and pharmaceutical benefits scheme records of the seven patients the subject of Complaints, prescribing tables, Codes of Conduct, Guidelines and Policies. Dr Jaffer relied upon a folder of documents containing his statement, a letter from Dr Aktar, a letter from Dr Malia and evidence of Dr Jaffer's completion of specified continuing professional development. 4. Conditions were imposed on Dr Jaffer's registration on 22 December 2017. Following non-compliance with those conditions, Dr Jaffer's registration was suspended effective from 8 May 2019 at 3pm. Non-publication order 1. The evidence before us includes medical and pharmaceutical records which relate to the medical history of the patients the subject of the Complaints. This information is personal and private from the patients' point of view, and warrants the making of a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). There will be an order in the following terms: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the patients referred to as Patient A, Patient B, Patient C, Patient D, Patient E, Patient F, Patient G and Patient H in the Complaint forming part of the Application in this matter is prohibited. Unsatisfactory professional conduct and professional misconduct 1. Relevantly to this application, the National Law defines unsatisfactory professional conduct in the following way: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The National Law defines professional misconduct in the following way: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (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. The Complaint, Dr Jaffer's response and the Tribunal's Consideration 1. The background to all of the complaints is set out in the Complaint in the following terms: In 1979, the practitioner undertook a Bachelor of Medicine/Bachelor of Surgery in Yangon, Myanmar. The practitioner practiced as a general practitioner in rural Myanmar for 13 years, before immigrating to Australia in 1993. The practitioner began working as a medical intern in Australia in 2003. The practitioner was then granted full medical registration in New South Wales in 2006. From 2011 to 2019, the practitioner worked as a general practitioner at the Glenmore Park Mediclinic ('the Mediclinic") at which time the practitioner was suspended. 1. There is no dispute about the accuracy of the background to all of the complaints. Complaint One 1. Complaint One alleges: [Dr Mohammed Jaffer] 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, skill or judgement 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; and/or ii engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT ONE Patient A was born in May 1998 and attended upon the practitioner for general care and management between 7 September 2014 and 16 January 2017. PARTICULARS OF COMPLAINT ONE 1. On the dates and in the quantities set out in Schedule A to this Complaint, the practitioner inappropriately prescribed Roaccutane (also known as Isotretinoin) for oral use to Patient A in circumstances where: a it was not clinically indicated; b it should have been prescribed by a dermatologist; c the practitioner failed to conduct an appropriate assessment of Patient A prior to the issue of each prescription; d the practitioner failed to make appropriate and timely referrals for Patient A to attend upon a specialist practitioner 2. On the dates and in the quantities set out in Schedule A of this Complaint, the practitioner prescribed Roaccutane, also known as isotretinoin, to Patient A for oral use without an authority under clause 37 of the Poisons and Therapeutic Goods Regulation (NSW) 2008 ("the PTG Reg"). 1. Schedule A showed that, on 28 April 2016, Dr Jaffer prescribed, for Patient A, 60 x 20mg tablets of Roaccutane with three repeats, which is a total of 240 tablets. On 13 September 2016, Dr Jaffer gave Patient A a further prescription with three repeats for 60 x 20mg tablets of Roaccutane. 2. Dr Jaffer, in cross-examination, admitted that he should not have prescribed the Roaccutane, and he should not have given repeat prescriptions, and he should have monitored Patient A's use of the drug. 3. The Poisons and Therapeutic Goods Regulation 2008 provides, in reg 37: 37 Authority required to prescribe certain restricted substances (1) This clause applies to the following restricted substances— acitretin clomiphene cyclofenil dinoprost dinoprostone etretinate follitropin beta hydroxychloroquine isotretinoin for oral use luteinising hormone tretinoin for oral use urofollitrophin (human follicle stimulating hormone) (2) A person must not prescribe a restricted substance to which this clause applies unless the person holds an authority under Part 8 to prescribe the substance. (3) This clause does not apply to the prescription of a substance— (a) by a veterinary practitioner, or (b) by a person who is authorised by the Permanent Head of the Commonwealth Department of Health to issue a prescription for the substance. (4) A person who issues a prescription that authorises the supply of a substance to which this clause applies must ensure— (a) in the case of a prescription that is issued in accordance with an authority under Part 8 that was granted to a particular person (by means of an instrument in writing given to the person), that the prescription is endorsed with the reference number shown on the authority, or (b) in any other case, that the prescription is endorsed with words that clearly indicate that the prescription has been issued under this clause. Maximum penalty—15 penalty units. 1. Roaccutane is isotretinoin. Dr Jaffer does not dispute that he did not hold the requisite authority under Part 8 of the Poisons and Therapeutic Goods Regulation 2008. Generally, such an authority would only be held by a specialist dermatologist. 2. In his amended Reply, filed on 25 May 2021, Dr Jaffer admitted all of Complaint One except for particular 1a. 3. Dr Jaffer said, in evidence, that he remembers that Patient A had cystic acne (see transcript p 21 line 26). For this reason, Roaccutane was clinically indicated. The patient health summary for Patient A is consistent with Dr Jaffer's evidence on this point. 4. We accept Dr Jaffer's evidence, and find, therefore, that particular 1a of Complaint One has not been proven by the HCCC. 5. All of particulars 1 b, c and d and particular 2 of Complaint One have been proven and admitted. 6. The HCCC tendered an expert report of Dr Steven Howle, a general practitioner with over 40 years' experience, dated 23 November 2019. In his report, at p 17 of Section C, Annexure 2, Part 2, Dr Howle responded to the following question: Was it necessary for Dr Jaffer to conduct an assessment of this patient prior to prescribing Roaccutane/Isotretinoin 20mg on each occasion? If so, did Dr Jaffer conduct an appropriate assessment? If not, what would have constituted an appropriate assessment in the circumstances? 1. Dr Howle's response to that question was as follows: Yes. An assessment should be undertaken for any patient when contemplating a new medication but especially using oral isotretinoin, and specifically in females, as it is a strong teratogen (ie has a high risk of causing birth defects). The assessment needs to include an in-depth discussion about the above risk, to check with a pregnancy test and to start at the time of a menstrual cycle. So, it is recommended that the patient is very much aware that pregnancy is to be avoided whilst on the drug and for one menstrual cycle after completion. Other side effects would usually be addressed at this assessment: dry skin especially lips and face, and increased sensitivity to light. One would also need to monitor with respect to onset of headaches (a rare but serious side effect of "pseudotumour cerebri"). It would be usual to check for family history of high cholesterol and diabetes: for past history of depression: and of all treatments tried previously for the acne. Dr Jaffer does document discussing "mood changes and depression" but does not mention teratogenicity. He also mentions "needs careful monitoring" but does not explain what this means and does not document anything at the repeat script consultation. This is below the standard reasonably expected of a practitioner of equivalent level of training or experience. 1. In the preparation of his report, Dr Howle was also asked: Was it clinically indicated and appropriate to prescribe Roaccutane/Isotretinoin 20mg to the patient on the dates and in the quantities described? 1. Dr Howle's response, at Section C Annexure 2 Part 2, p 19 was as follows: It may have been clinically indicated but there is insufficient recorded detail to know. It was inappropriate as this drug requires an Authority prescription which can only be issued by a qualified dermatologist. With respect to dates and quantity, the dates correspond to 1 daily from 28 April 2016 until 13 September 2016 (136 days) whereas the prescription was for 60 with 3 repeats (240 days). It would appear to be excessive quantity to prescribe another 240 tablets at 136 days, especially without any documentation of progress, enquiry about side effects, or documenting a reason for the early repeat. This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism. 1. We accept Dr Howle's evidence. 2. In cross-examination at the hearing before us, and in his affidavit, Dr Jaffer said that he asked several pharmacists if he could prescribe Roaccutane in relation to Patient A. He admitted that this indicated that there was a question in his mind as to whether he was able to prescribe it. Dr Jaffer said that some of the pharmacists said that he could not prescribe Roaccutane, but one said that he could, and he chose to take the advice of the pharmacist who said that he could (see transcript p 27-28). 3. We determine that the proven and admitted conduct of Dr Jaffer alleged in Complaint One, particulars 1 b, c and d and particular 2, constituted unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the conduct demonstrated that the knowledge, skill and judgment possessed by Dr Jaffer, and the care exercised by him, in the practice of medicine, in relation to Patient A, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. Complaint Two 1. Complaint Two alleges that Dr Jaffer: 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, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT TWO Patient B was born in November 1990 and attended upon the practitioner between 22 September 2014 to 18 December 2017 for general care and management, including for symptoms relating to tonsillitis, gastroenteritis, stress, sinusitis and musculoskeletal pain due to an injury, jaw pain, and concerns regarding whiplash. PARTICULARS OF COMPLAINT TWO 1. On the dates and in the quantities set out in Schedule B to this Complaint, the practitioner: a. failed to conduct an appropriate assessment prior to prescribing Oxycodone to Patient B; b. inappropriately prescribed Oxycodone to Patient B in circumstances where it was not clinically indicated; c. failed to prescribe Oxycodone to Patient B in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 79 of the PTG Reg; d. failed to make appropriate and timely referrals for Patient B to attend upon a specialist for assistance; e. concurrently prescribed Oxycodone and Diazepam to Patient B without exercising responsible medical judgment. 1. The Poisons and Therapeutic Goods Regulation 2008, in reg 79 provides: 79 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty—20 penalty units or imprisonment for 6 months, or both. 1. Schedule B is as follows: Schedule B (691404, pdf) 1. In his amended Reply, Dr Jaffer said the following in relation to Complaint Two: The respondent admits sub-particulars a, b (except in relation to the consultations on 25 October 2016 and 4 November 2016), c, d and e. 1. On 25 October 2016, Dr Jaffer prescribed to Patient B 28, 20mg tablets of Oxycontin (oxycodone) "1bd", which means one tablet twice daily. At the same consultation, Dr Jaffer prescribed 28, 40mg tablets of Oxycontin "1bd". 2. On 9 November 2016, Dr Jaffer prescribed to Patient B 28, 40mg tablets of Oxycontin "1bd". 3. In the paragraph of his reply quoted above at [28], Dr Jaffer mistakenly refers to 4 November 2016 when he means 9 November 2016. It is clear that 9 November 2016 is the date in question, because Dr Jaffer's practice notes say that, on that date, he saw Patient B who reported to him that he had been involved in a traffic accident. Dr Jaffer diagnosed whiplash. Dr Howle, in his report, is clearly referring to that 9 November 2016 consultation but mistakenly says that it was on 4 November 2016. Dr Jaffer then relies upon Dr Howle's report to substantiate his pleading, and repeats the mistake. There was no consultation on 4 November 2016. 4. In his report, Dr Howle says the following in relation to the prescribing to Patient B by Dr Jaffer set out in Schedule B to the complaint: Yes. (a) Oxycodone. This was first prescribed for pain from tonsillitis on 28 August 2016. There is no description of the pain, its severity, or aggravating or relieving factors. There are no physical examination findings. There is no list of previously tried medications or any explanation for using such a powerful analgesic first up. On 3 September 2016 the reason for the visit is "pain management" without any description of the pain or the response to the oxycodone. On 20 September 2016 the Oxycontin was doubled to 80mg twice daily. This is a high dose and no explanation is documented. On 3 October 2016 the dose is halved, but still without any explanation or any diagnosis. 8. Was it necessary for Dr Jaffer to conduct an assessment of this patient prior to prescribing the following drugs on each occasion: On 25 October 2016 when "'weaning off" Oxycontin and scripts for 40mg and 20mg were given. This seems reasonable. a. Oxycodone, including at the doses indicated. On 4 November apparently the patient was involved in a traffic accident with various musculoskeletal problems. There is good documentation of history and examination and so it is not unreasonable, as the patient was already on Oxycontin, to increase the dose back to 40mg twice daily. b. Diazepam On 8 December 2016 there is a record of a script for Endone, but no recorded consultation to explain the need to add further opioids. If so, did Dr Jaffer conduct an appropriate assessment? If not, what would have constituted an appropriate assessment in the circumstances? On 12 December 2016 there is mention of Endone 5mg (but no record of a script) As well Valium is added a 2.5mg 4 times daily with no explanation. On 9 January 2017 "Weaning narcotic medication" is recorded but a script for the same dose 40mg is given. Especially as on 24 January 2017 there is a new script for 40mg. this does not suggest weaning. On 2 March 2017 the Oxycontin is doubled again to 80mg strength for "left jaw pain". There is no history, examination, diagnosis or explanation for doubling the dose when 2 months prior Dr Jaffer was "weaning". This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism. (b) Diazepam. In the timeframe above, this was used as a treatment for an acute grief reaction. It followed a briefly documented assessment and does not seem unreasonable as a single prescription as it was ceased on 20 September 2016. (a) Oxycodone. The starting dose of Oxycontin 40mg twice daily is high (equivalent to 16 Endone per 24 hour), especially as when considering using long-acting oxycodone. It is usual to start with the short-acting for, Endone on a "prn" (as required) dose to try and judge exactly how much oxycodone is needed over 24 hours, then one might consider changing to Oxycontin twice daily to give a more constant dose of opioid if the pain was considered to be a long-term problem. However, as tonsillitis pain is commonly quite short lived as the acute inflammation settles, it would be very uncommon to need long acting analgesics, and there is no explanation. 9. Was it clinically indicated and appropriate to prescribe the following drugs to the patient on the dates and in the doses and quantities described: Other than the interval between the first and second scripts (5 days), the quantities seem reasonable or a patient requiring constant high doses. I am unable to find an adequate clinical reason. a. Oxycodone This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism. b. Diazepam (b) Diazepam. When prescribed "prn", then it would be usual to add specifically what this means as far as dosage and the maximum dose to be used per day. This is not been done. In December 2016, the Valium was restated without any documentation except for "usual reasons". This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism. 10. Did Dr Jaffer's prescribing of the following drugs to the patient accord with accepted therapeutic standards regarding dosage, frequency and duration: (a) As noted in my answer to 9(a) with respect to the use of a high dose long-acting opioid, I do not believe that there is sufficient documented evidence to use this Oxycontin for this patient. a. Oxycodone- This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism. b. Diazepam (b) Diazepam. In the first prescription no dose, frequency or duration is mentioned. The December script has both dose and frequency recorded. As noted in my answer above about combining benzodiazepines and opioids, the concurrent prescribing is fraught with problems of increased dependence on either of both, and the combination increasing the side effects of both. this may include accidental overdose. The prescribing doctor needs to be quite sure that the combination is essential and warns the patient of potential problems. 11. Was it appropriate for Dr Jaffer to prescribe Diazepam and Oxycodone concurrently for this patient? There is not sufficient documentation to agree that it was appropriate. This is below the standard reasonably expected of a practitioner of equivalent level of training or experience. (a) Oxycodone. The dosage intervals between prescriptions is mostly appropriate with the dose prescribed, even when the dosage fluctuates. 12. Did this patient exhibit any drug seeking behaviours? If so, did Dr Jaffer respond appropriately to this behaviour? Without more details as to the reason for prescribing such as type and severity of pain and asking about drug history etc (see Answer above about drug seeking behaviour and Document 33), it is not possible to say there was drug seeking behaviour. (b) Diazepam. Not obviously as the time interval was of over 3 months between prescriptions. 1. We accept Dr Howle's evidence. It was not challenged. 2. In cross-examination, Dr Jaffer agreed that he should not have used Oxycontin for tonsillitis. It was put to him that he had told the panel at the hearing under s 150 of the National Law that the prescription was in respect of back pain, even though his notes said tonsillitis. Dr Jaffer then admitted that he could only recollect prescribing Oxycontin for Patient B for back pain, and that other than that he was not sure. He was not sure whether he could recollect giving Patient B an assessment for back pain (transcript p 30). 3. Dr Jaffer said that Patient B was the only patient for whom he prescribed Oxycontin for tonsillitis (transcript p 30). 4. Dr Jaffer could not recollect asking Patient B if he had been on opioids before 29 August 2016 (transcript p 30). Dr Jaffer recalled that Patient B had specifically asked for Oxycontin (transcript p 31). Dr Jaffer was unable to explain why he had prescribed the drug requested by Patient B rather than considering alternatives. 5. Under cross-examination, Dr Jaffer was unable to explain why he started Patient B on a high dose of Oxycontin of 40mg tablets on 29 August 2016 and then doubled it on 20 September 2016, except to say that it was a mistake, and the patient was still in pain. Dr Jaffer was unable to remember whether he had formed a view as to whether Patient B's pain was acute or chronic or what the source of Patient B's pain was by 20 September 2016. Dr Jaffer admitted that he did not make any assessment of the pain or any examination (transcript p 32-33). 6. Under cross-examination, Dr Jaffer said that he was concerned, by 25 October 2016, that Patient B was opiate dependent, and planned to wean him from Oxycontin, but the plan did not progress because, by 2 March 2017, Patient B had pain again. Dr Jaffer was unable to explain why he did not refer Patient B to a pain specialist or try any other method of reducing his dependence on opioids. 7. On the basis of the evidence of Dr Howle and Dr Jaffer and the admissions made by Dr Jaffer, together with the records of the prescriptions given to Patient B by Dr Jaffer, we find Complaint Two, particulars 1a, c, d, and e proven. As to Complaint Two, particular 1b, we find the allegation proven except in respect of 25 October 2016 and 9 November 2016. 8. On the basis of the facts which have been proven with respect to Complaint Two, we determine that the conduct admitted by Dr Jaffer constituted unsatisfactory professional conduct, in that it demonstrated that Dr Jaffer's knowledge, skill and judgment, and the care exercised by him, in the practice of medicine, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Complaint Three 1. Complaint Three alleges that Dr Jaffer: 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, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT THREE Patient C was born in May 1990 and attended upon the practitioner regularly between 5 January 2012 and 15 February 2018 for general care and management including for the management of her pregnancy, pain management for a leg fracture, back pain, bipolar disorder, tonsillitis, sinus surgery, chronic sinusitis and drug weaning treatment. PARTICULARS TO COMPLAINT THREE 1. On the dates and in the quantities set out in Schedule C to this Complaint, the practitioner: a. failed to conduct an appropriate assessment prior to prescribing Oxycodone, Diazepam, Oxycodone and Naloxone, paracetamol, codeine and Phentermine to Patient C; b. inappropriately prescribed Oxycodone to Patient C in circumstances where it was not clinically indicated; c. failed to prescribe Oxycodone in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 79 of the PTG Reg; d. failed to prescribe Diazepam and Phentermine in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 34 of the PTG Reg; e. failed to make appropriate and timely referrals for Patient C to attend upon a specialist for assistance; f. failed to liaise with Patient C's treating psychiatrist regarding the psychiatrist's [should be 'practitioner's] prescription of Endone and Targin for Patient C; g. inappropriately prescribed Oxycodone, Diazepam, Oxycodone and Naxolone, paracetamol, codeine and Phentermine concurrently to Patient C without exercising responsible medical judgment. 1. Schedule C is as follows: Schedule C (752283, pdf) 1. The Poisons and Therapeutic Goods Regulation 2008 provides, in reg 34, as follows: 34 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty—20 penalty units or imprisonment for 6 months, or both. 1. In his amended Reply, Dr Jaffer admitted the whole of particular 1 of Complaint Three. The facts relied upon for the allegation of unsatisfactory professional conduct in Complaint Three are therefore admitted. 2. With respect to the prescriptions for Patient C for Oxycontin, Dr Howle, in his report, criticised Dr Jaffer's lack of detailed documentation of a full assessment as to why the drug was needed. Dr Howle said, concerning Dr Jaffer's notes (report, p 29): For instance, 7 October 2012, he states "# fibula unbearable paint (sic)" and prescribes a high dose of Oxycontin (80mg) twice daily with Endone (5mg) 4 times daily. This is a very high starting dose for a patient unless she was not opioid-naïve and already on a large dose. There is no record of what, if any, pain medication she was on. There not even any documentation to state that he checked if her leg support system (brace or plaster) was too tight (a common cause for pain in such a situation). There is no history of the injury, no description of the pain, and no history of current pain medication. On other occasions, especially in 2016-2017, this drug was used repeatedly for "sinusitis" or "tonsillitis". There is no documented indication of the nature of the pain, aggravating/relieving factors, or a pain score for the unusual use of his drug for these conditions. (see Patient B). This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism. 1. Dr Howle's report was not contested. His opinion, set out in [42], substantiates particulars 1a, 1b and 1c of Complaint Three. 2. In cross-examination, Dr Jaffer admitted that he did not ask Patient C, on 7 October 2012, whether she had been on opioids before. He agreed that the dose he prescribed for her was high, but said that he did not realise that, at the time (see transcript p 35-36). 3. With respect to the prescriptions for Patient C for diazepam, Dr Howle noted that Dr Jaffer did not record any assessment of a need for an anxiolytic drug. Dr Howle's opinion was that this is significantly below the standard reasonable expected of a general practitioner of the equivalent level of training and experience as Dr Jaffer. This substantiates particulars 1a and 1d. 4. In cross-examination, Dr Jaffer agreed that he was unaware when he prescribed diazepam for Patient C, on 27 November 2012, that it was not good practice to prescribe benzodiazepines and opiates together (see transcript p 36-37). 5. With respect to the prescriptions for Patient C for oxycodone and naloxone, Dr Howle noted that this was first prescribed after Patient C had sinus surgery on 6 April 2017. Dr Howle said that there was no description in Dr Jaffer's notes of the pain, nor of any medication given upon discharge from the hospital. Dr Howle said that this was significantly below the standard expected of a general practitioner of the equivalent level of training and experience as Dr Jaffer. 6. With respect to the prescriptions of paracetamol and codeine, Dr Howle noted that this was first used, according to Dr Jaffer's notes, for 'gall bladder pain', but that no other pain assessment was made. Dr Howle said that this was below the standard expected of a general practitioner with the equivalent level of training and experience as Dr Jaffer. 7. With respect to the prescription of phentermine (Duromine), Dr Howle noted that Dr Jaffer's notes said, on 18 October 2015, which was the first occasion on which he prescribed phentermine for Patient C, "losing weight on Duromine", which implied that Dr Jaffer had prescribed Duromine for Patient C before, except that there is no record of a prior prescription. There is no note as to the history of a reason for Patient C to lose weight, and there is no mention of Patient C's current weight. At the time, Patient C was also on Cymbalta, Seroquel and Oxycontin, but there is no indication that Dr Jaffer communicated with Patient C's psychiatrist before adding the phentermine. 8. In cross-examination, Dr Jaffer said that he thought he knew, at this time, that Patient C was in the care of a psychiatrist, but he was not sure (see transcript p 42). 9. Dr Howle, in his report, said that using the opioids in combination with other drugs would usually call for the careful documentation of the assessment done prior to the commencement of any extra medication. Combining the drugs can lead to an increase in the side effects of each drug and lead to dependency problems. Dr Howle said that the combination of drugs was unusual. Dr Howle's opinion was that Dr Jaffer's conduct was significantly below the standard reasonably expected of a general practitioner of the equivalent level of training and experience as Dr Jaffer. We note that phentermine is a stimulant sometimes prescribed to aid in weight loss. Dr Howle's opinion with respect to the prescription of phentermine further substantiates particulars 1a and 1e as well as particular 1g. 10. Dr Howle said that Dr Jaffer ought to have made Patient C's psychiatrist aware of what Dr Jaffer was prescribing for her. Patient C had been diagnosed with Bipolar 2 Disorder and was on a combination of anti-psychotic and antidepressant medication. Dr Howle said that, in his opinion, Dr Jaffer's omission to liaise with Patient C's psychiatrist was substantially below the standard reasonably expected of a general practitioner of the equivalent level of training and experiences as Dr Jaffer. This substantiates particular 1f. 11. Dr Howle noted that Dr Jaffer made an attempt in late 2016 and 2017 to reduce the quantity of opioids he was prescribing for Patient C, so that there may have been a suspicion that Patient C was addicted. Dr Howle said that Dr Jaffer should have referred Patient C to an addiction specialist or a drug and alcohol unit. As we have said above, this was conceded. 12. Complaint Three has been proven and conceded. Dr Jaffer's conduct in relation to Patient C, alleged in Complaint Three, constituted unsatisfactory professional conduct in that it demonstrated that the knowledge, skill and judgment possessed and exercised by Dr Jaffer in the practice of medicine was significantly below the standard reasonable expected of a practitioner of an equivalent level of training and experience. Complaint Four 1. Complaint Four alleges that Dr Jaffer: 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, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT FOUR Patient D was born in March 1976 and consulted the practitioner regularly between 23 December 2013 to 16 February 2017 for general care and chronic disease and pain management, including management of kidney disease, reflux and polycystic ovarian syndrome. PARTICULARS OF COMPLAINT FOUR 1. On the dates, and in the quantities set out, in Schedule D to this Complaint, the practitioner: a. failed to conduct an appropriate assessment prior to prescribing Oxycodone and Tramadol to Patient D; b. failed to prescribe Oxycodone in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 79 of the PTG Reg; c. failed to prescribe Tramadol in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 34 of the PTG Reg; d. prescribed Oxycodone, a Type C drug, within the meaning of section 28(6) of the Poisons and Therapeutic Goods Act 1966 ("the PTG Act"), in circumstances where the practitioner had formed or ought reasonably to have formed the opinion that Patient D was a drug dependant person (within the meaning of section 27 of the PTG Act), and the practitioner did not have the proper authority to prescribe under section 28(3) of the PTG Act; e. failed to make appropriate and timely referrals for Patient D to attend upon a specialist for assistance; f. inappropriately prescribed Oxycodone and Tramadol concurrently to Patient D without exercising responsible medical judgment. 1. Schedule D to the complaint is as follows: Schedule D (734906, pdf) 1. The Poisons and Therapeutic Drugs Act 1966 provides, in s 27: 27 Definition In this Division: drug dependent person means a person who has acquired, as a result of repeated administration of: (a) a drug of addiction, or (b) a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, an overpowering desire for the continued administration of such a drug. 1. The Poisons and Therapeutic Goods Act 1966 provides, in s 28: 28 Prohibition on prescribing drugs of addiction in certain cases (1) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to any person a type A drug of addiction. (2) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe or supply a type B drug of addiction: (a) for continuous therapeutic use by a person for a period exceeding 2 months, or (b) for a period that, together with any other period for which that drug or any other type B drug of addiction has been prescribed or supplied by the medical practitioner or nurse practitioner or has, to the medical practitioner's or nurse practitioner's knowledge, been prescribed or supplied by any other medical practitioner or nurse practitioner, would result in that drug, or that drug together with any other such drug, being prescribed or supplied for continuous therapeutic use for a period exceeding 2 months. (3) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction. (4) For the purposes of this section, the proper authority means an authority under section 29 that authorises the medical practitioner or nurse practitioner to prescribe or supply the drug of addiction to the person concerned. (5) A drug of addiction may be prescribed for or supplied to a person by a medical practitioner or nurse practitioner without the proper authority if the medical practitioner or nurse practitioner is authorised by the regulations to prescribe or supply the drug without an authority under section 29. (6) In this section: type A drug of addiction means a drug of addiction prescribed by the regulations under this section as a type A drug of addiction. type B drug of addiction means a drug of addiction prescribed by the regulations under this section as a type B drug of addiction. type C drug of addiction means any drug of addiction (other than a type A drug of addiction). 1. Dr Jaffer, in his amended Reply, admitted particular 1 of Complaint Four, except for particular 1a, in relation to Patient D's initial consultation. 2. Dr Howle, in his report, when addressing Dr Jaffer's consultations with Patient D, said that it is necessary to conduct an assessment before prescribing pain medication on all occasions. Dr Howle said that Dr Jaffer made comprehensive notes on 23 December 2013, with respect to symptoms and examination, and came to 'a reasonable conclusion' that, as Panadeine Forte was not assisting the patient, she should be prescribed Endone. However, Dr Howle said, throughout 2014 and 2015, Dr Jaffer's notes became much briefer and appropriate assessments were not made. Dr Jaffer omitted to record his assessment of Patient D's pain, its location, intensity, whether it was acute or chronic, aggravating and relieving factors and other medications tried. He prescribed Endone on 15 May 2014 noting only, by way of diagnosis "dysuria" and "no back pain", on 11 September 2014 "usual UTI" and on 6 January 2015 "pain". 3. Complaint Four, particular 1a, has been proven on the balance of probabilities, except in relation to the consultation on 23 December 2013. 4. Dr Howle said that Dr Jaffer's assessment and notes in relation to Patient D were significantly below the standard reasonably expected of a practitioner of the equivalent level of training or experience, and this invited Dr Howle's strong criticism, both in relation to the prescription of oxycodone and tramadol. 5. Dr Howle said, in his report: Endone and Tramal 50mg are usually prescribed for acute pain and not used repeatedly at short intervals. Oxycontin and Tramal SR are both used when there is chronic pain requiring 24 hour long-term relief. There is now some evidence to show that using these drugs for longer than about 3 months continuously no longer helps the pain but increases drug dependency. It is very unusual to prescribe opioids for acute lower urinary tract infections, and probably not appropriate. There is nothing in this medical record to explain why this patient had a chronic or recurring urinary tract infection requiring long term narcotics. This is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invites my strong criticism for both drugs a and b. [ie oxycodone and tramadol] 1. Dr Howle said that the gradual escalation of the dose of Oxycontin for what appeared to be a relatively stable pain situation was concerning. In the absence of an explanation, it was Dr Howle's view that this escalation was significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience and invited Dr Howle's strong criticism. Complaint Four, particular 1b, has been proven. 2. Dr Howle noted that Tramal (tramadol) was prescribed when the patient had not been seen for three months. The commencement dose was 200mg twice daily, together with 50mg four times daily as needed. Dr Howle commented that this was a high dose prescribed without any documentation as to Patient D's pain in the period three months prior to the consultation. There were no notes to say that Patient D had been on any analgesia in the three months prior to the consultation, and Dr Howle said that the starting dose was unacceptable in those circumstances. Dr Howle said that this prescribing was significantly below the standard reasonably expected of a practitioner of the equivalent level of training or experience and invited his strong criticism. This substantiates particular 1c of Complaint Four. 3. Relevantly to particulars 1a and 1f of Complaint Four, Dr Howle said, in his report, in relation to the prescribing of oxycodone and tramadol together: Prescribing 2 different strong analgesics at the same time does not make pharmacological sense. The combination does increase the risk of side effects of both, especially as concomitant use of tramadol increases the seizure risk in patients taking other opioids. These agents are often individually epileptogenic and may have additive effects on seizure threshold during coadministration. CNS- and respiratory – depressant effects may also be additive. In patients who have been previously dependent on or chronically using opioid, tramadol can also reinitiate physical dependence or precipitate withdrawal symptoms. It also makes it harder to work out which drug needs adjusting and is not a method of prescribing which is recommended in general practice. This is below the standard reasonably expected or a practitioner of equivalent level of training or experience. 1. In cross-examination, Dr Jaffer was unable to explain why he prescribed oxycodone and tramadol together. 2. Dr Jaffer's notes of his consultations with Patient D on 21 December 2014 and 29 December 2014 record the word 'Script' as the reason for the visit, and noted that he had prescribed Endone and Oxycontin, among other things. 3. On 3 February 2015, Dr Jaffer wrote, in his notes in relation to Patient D, 'requesting for pain relief as usual'. He prescribed Endone and Oxycontin and noted, 'I told her that I cannot prescribe her any more pain relief meds as above from next time.' Then, on 15 February 2015, Dr Jaffer wrote that Patient D visited him for 'Recurrent UTI'. He prescribed Endone 'as a last script', noting 'I reiterate that I cannot prescribe her any more pain relief meds as above from next time'. On 4 March 2016, Dr Jaffer prescribed tramadol, an opiate, to Patient D. He continued to prescribe tramadol into 2017. In cross-examination, Dr Jaffer said that he could not remember why he resumed prescribing opiates despite his earlier conclusion, on 3 February 2015, that the pain being reported was not genuine (see transcript p 50, line 47). 4. Dr Howle was asked whether Patient D exhibited any drug seeking or drug dependent behaviour, and, if so, whether Dr Jaffer responded appropriately. Dr Howle said, in his report that Patient D did exhibit drug seeking and drug dependent behaviour. Dr Howle said, in his report: She did have visits and acquired scripts from Dr Jaffer in time intervals consistent with usage above the prescribed amount. There was a time of dose escalation for an undisclosed reason from the same condition (some sort of genitourinary pain of long standing). 1. As to particular 1e of Complaint Four, concerning the failure of Dr Jaffer to initiate the referral of Patient D to specialists, Dr Howle noted that Dr Jaffer had referred Patient D to a kidney specialist with respect to her chronic renal disease. However, there was no documented letter back from the specialist to explain the regular need for opioids. There was also a referral letter to a surgeon with respect to Patient D's gallstones, with no documented letter back from the surgeon. 2. Dr Howle said that the use of opioids long term for 'a vague renal tract pain', especially if it was only pain on micturition, is 'very uncommon', and called for a referral to a pain specialist, which did not occur. 3. Dr Howle said that, as Patient D was using regular opioids for more than 2 months continuously, Dr Jaffer should have acquired an authority under s 28 of the Poisons and Therapeutic Goods Act 1966. He did not do so. This relates to particular 1d of Complaint Four. 4. Dr Howle commented that Dr Jaffer's notes with respect to Patient D are occasionally comprehensive, such as for 23 December 2013, but the majority of the notes are very brief and do not disclose Dr Jaffer's reasoning underlying his clinical decision making. In Dr Howle's opinion, this is significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience, and invited his strong criticism. 5. Complaint Four has been proven and conceded, except for the allegation as to the inadequacy of the assessment of Patient D on 23 December 2013, which, we accept, was adequate and appropriate. The conduct alleged, conceded and proven in relation to Count Four amounted to unsatisfactory professional conduct in that it demonstrated that the knowledge skill and judgment possessed and exercised by Dr Jaffer in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. Complaint Five 1. Complaint Five alleges that Dr Jaffer: 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, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT FIVE Patient E was born in February 1948 and consulted the practitioner regularly between 23 August 2011 and 21 January 2018. During this period, the practitioner recorded the patient as "well, no specific problem, needs scripts". Patient E consulted the practitioner for management of a hip fracture as well as for anxiety and panic attacks. PARTICULARS OF COMPLAINT FIVE 1. On the dates, and in the quantities set out, in Schedule E to this Complaint, the practitioner: a. failed to conduct an appropriate assessment prior to prescribing Alprazolam, Diazepam, Nitrazepam, Oxycodone and Tramadol to Patient E; b. inappropriately prescribed Alprazolam, Diazepam, Ibuprofen, Nitrazepam and Tramadol to Patient E in circumstances where it was not clinically indicated; c. failed to prescribe Alprazolam, Oxycodone and in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 34 of the PTG Reg; d. failed to prescribe Nitrazepam and Tramadol in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 34 of the PTG Reg; e. prescribed Alprazolam and Oxycodone, Type C drugs of addiction within the meaning of section 28(6) of the PTG Act, in circumstances where the practitioner had formed or ought reasonably to have formed the opinion that Patient E was a drug dependant person (within the meaning of section 27 of the PTG Act), and the practitioner did not have authority to prescribe under section 28(3) of the PTG Act; f. prescribed Alprazolam, a Type B drug of addiction within the meaning of clause 123 of the PTG Reg, for a continuous therapeutic period exceeding 2 months, contrary to section 28 (2) of the Act; g. failed to respond appropriately when Patient E exhibited possible drug seeking/dependency behaviours and ought to have formed an opinion that Patient E was a drug dependant person within the meaning of section 27 of the PTG Act; h. failed to make appropriate and timely referrals for Patient E to attend upon a specialist for assistance; i. inappropriately prescribed Alprazolam, Diazepam, Nitrazepam, Oxycodone, [Paracetamol] and Tramadol concurrently to Patient E without exercising responsible medical judgment. 1. Schedule E to the complaint is as follows: Schedule E (760209, pdf) 1. The Poisons and Therapeutic Goods Regulation 2008 provides as follows in reg 123: 123 Prescribed type B drugs of addiction For the purposes of section 28 of the Act, each of the following is prescribed as a type B drug of addiction— (a) a drug of addiction that— (i) does not contain cannabis or tetrahydrocannabinols (when included in Schedule 8 of the Poisons List) or nabiximols, and (ii) is packaged and labelled in a manner that is consistent with the drug being intended for administration by injection, inhalation, spray or application to mucous membranes, (a1) alprazolam, (b) buprenorphine (other than in transdermal patches), (c) dextromoramide, (d) flunitrazepam, (e) hydromorphone, (f) methadone. 1. In his amended Reply, Dr Jaffer pleaded as follows in relation to Complaint Five: The respondent admits sub-particular a., b., c. (in relation to Alprazolam but not Oxycodone), d., e., f., g., h and i. 1. In his report, Dr Howle said that it appeared that Patient E had been taking alprazolam (a benzodiazepine) since at least 2004, and Dr Jaffer then prescribed it to her between 5 June 2013 to 23 October 2017. In the notes, there is no documentation as to the details of her diagnosis, nor of any other management of her 'anxiety and panic attacks'. Dr Howle indicated that Dr Jaffer should have considered whether Patient E needed alprazolam by taking and recording a history of her anxiety/panic disorder. The history would have included all past occurrences of the illness, how long Patient E had been on benzodiazepines, how well her symptoms were controlled, whether she was taking the alprazolam as prescribed, whether she had seen a psychiatrist or psychologist and whether there were any reports which substantiated the continuation of the drug. 2. Diazepam and nitrazepam are also benzodiazepines, which are indicated for short term use. Dr Howle said that on each occasion that they were prescribed, an assessment of Patient E's need for them should have been documented. Dr Howle said that no reason was given in the clinical records for the use of either of these medications. Particular 1a of Complaint Five has been established in relation to these medications. 3. Dr Howle noted that the ibuprofen seems to have been given for musculoskeletal pain following a hip fracture. However, no detail was recorded as to Patient E's need for the drug. Dr Howle noted that Dr Jaffer, within 16 days, prescribed enough ibuprofen for 180 days. Dr Howle would have expected to see a documented history setting out the history of the fracture, whether Patient E had had surgery, what sort of pain she was experiencing and what drugs she was sent home from hospital with, together with an explanation as to why she needed an anti-inflammatory drug. Dr Howle noted that there was a discharge summary which mentions Brufen 400mg, one tablet three times daily (Brufen is a brand name for ibuprofen). Particular 1b of Complaint Five has been proven in relation to ibuprofen. 4. As to Endone, the short acting oxycodone, Dr Howle noted that, at discharge, Patient E was given 2.5mg, 4 times daily if needed. Dr Jaffer then doubled that dose on 11 April 2015, as he did with the ibuprofen, without documenting any reason or documented assessment of Patient E's pain, such as the severity of pain, the site of the pain and any relieving or aggravating factors. One week later, Dr Jaffer changed to prescribing Oxycontin 10mg, twice daily. Dr Howle notes that Patient E was only on these drugs for 3 to 4 months, and that doses eventually tapered as would be expected. Particular 1b of Complaint Five has been established with respect to oxycodone. 5. Tramadol was prescribed by Dr Jaffer immediately after the fracture diagnosis. No assessment of the pain was made. 6. Alprazolam was prescribed by Dr Jaffer for Patient E from 25 June 2013 to 23 October 2017 at a dose of one half of a tablet daily. However, Dr Jaffer prescribed enough of the drug throughout that period for Patient E to take three tablets daily. Dr Howle said that this quantity was inappropriate. There should have been a documented reason for the dosage prescribed. Specialist assistance and agreement for the prescribing to continue should have been sought. Dr Howle noted that there was a letter from a psychiatrist on 1 July 2009 in which the psychiatrist stated that it was 'reasonable to continue' at one half to one tablet daily, and that he would monitor Patient E's progress. No later correspondence appears in the clinical records. In Dr Howle's opinion, it was not appropriate for Dr Jaffer to continue to prescribe alprazolam without the further involvement of the psychiatrist. Particulars 1a, 1b and 1c of Complaint Five have been proven with respect to alprazolam. 7. Dr Howle said that there is no clinical indication noted by Dr Jaffer for the prescription of diazepam. He notes that the dose is quite high at 10mg daily, however it was for a limited quantity over time. 8. As to the ibuprofen, Dr Howle said that it is an anti-inflammatory drug which, if taken regularly and long–term (it was prescribed for 3 months at 800mg 3 times daily), may have gastrointestinal or renal side effects. Dr Howle said that the dose was higher than would normally be used, and notes that there is no documentation of a chronic inflammatory disease. 9. As to the nitrazepam, Dr Howle said that there was no clinical indication to use the drug, especially considering that Patient E was also on another benzodiazepine. Particular 1b of Complaint Five has been proven in relation to nitrazepam. 10. As to the oxycodone, Dr Howle said that it was probably reasonable to prescribe it if it was being used for a short post-operative course, but notes that no reason is actually given. 11. There is insufficient information in the clinical notes to discern the reason for the high doses of Tramal, namely 100mg twice daily and 50mg 4 times daily as needed. Dr Howle notes that Tramal was prescribed short term. 12. Dr Howle was asked whether the prescribing was in accordance with accepted therapeutic standards as to dosage, frequency and duration. 13. In relation to the alprazolam, Dr Howle said that the number of tablets prescribed was excessive, given that the dose was half a tablet per day and the patient was prescribed a sufficient supply to take three tablets per day. In relation to oxycodone, Dr Howle said that, had Patient E been suffering from severe post-operative pain, the dose, frequency and duration would be acceptable. Dr Howle said, however, that the idea that there might have been severe post-operative pain was an assumption on his part and there was no documentation to support that reason for the prescription. Particular 1c has been made out in relation to alprazolam. It has not been established in relation to oxycodone, but only because there is no evidence of the basis upon which oxycodone was prescribed. 14. In relation to the nitrazepam, Dr Howle said that the dose and frequency were within acceptable standards, but, given that it was being used with another benzodiazepine, the duration of the prescribing was problematic. 15. Complaint Five has been proven and conceded, except for particular 1c in so far as it relates to oxycodone and particular 1i in so far as it relates to paracetamol. The conduct alleged, conceded and proven in relation to Complaint Five amounted to unsatisfactory professional conduct in that it demonstrated that the knowledge skill and judgment possessed and exercised by Dr Jaffer in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience Complaint Six 1. Complaint Six alleges that Dr Jaffer: 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, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT SIX Patient F was born in February 2001 and attended upon the practitioner between 21 February 2013 and 6 February 2018, from when she was 12 years of age until she was 17 years of age, for general care and management. PARTICULARS OF COMPLAINT SIX 1. On the dates and in the quantities set out, in Schedule F to this Complaint, the practitioner inappropriately prescribed oral Roaccutane (also known as Isotretinoin) to Patient F in circumstances where:- a. it was not clinically indicated; b. it should have been prescribed by a dermatologist; c. the practitioner failed to conduct an appropriate assessment of Patient F prior to the issue of each prescription; d. the practitioner failed to make appropriate and timely referrals for Patient F to attend upon a specialist practitioner 2. On the dates and in the quantities set out in Schedule F to this Complaint, the practitioner prescribed oral Roaccutane to Patient F without an authority under clause 37 of the PTG Reg on the dates and in the quantities as set out in Schedule F to this Complaint. 1. Schedule F to the complaint is as follows: Schedule F (683225, pdf) 1. We have set out, above, at [13], the provisions of clause 37 of the Poisons and Therapeutic Goods Regulations 2008. 2. In his amended Reply, Dr Jaffer admits sub-paragraphs 1b, 1c and 1d of the complaint, except that he says that he made a referral to a dermatologist before commencing to prescribe on 25 February 2016. Dr Jaffer denies sub-particular 1a. Dr Jaffer admits particular 2. 3. In the period from 25 February 2016 to 4 June 2017, which was 462 days long, Dr Jaffer prescribed 720 tablets of Roaccutane 20mg to Patient F, with directions to take one daily. 4. Dr Howle, in his report, acknowledges that Dr Jaffer wrote a referral letter to a dermatologist in relation to Patient F prior to prescribing on 25 February 2016, but there is no record of a letter in response, and no indication that Patient F saw the dermatologist. 5. Dr Howle said, in his report, that there is no record of an assessment of Patient F prior to each prescription. The medical records therefore give insufficient indication as to whether the prescription of Roaccutane was clinically indicated. 6. On 18 August 2015, Dr Jaffer's notes concerning Patient F say 'acne referral'. On 10 October 2015, the notes say 'going to have roaccutane' [sic]. On 7 November 2015, Dr Jaffer records in the notes, under 'Diagnosis' the word 'acne'. 7. Whilst we accept Dr Howle's criticism that the assessment recorded in the notes is inadequate, the evidence before us does not go so far as to establish on the balance of probabilities that the prescription of Roaccutane to Patient F was not warranted in the sense of there being a clinical reason for it. Particular 1a has not been made out. 8. The balance of Complaint Six has been admitted, and is substantiated on the evidence. 9. In cross-examination, Dr Jaffer was asked questions about the conversation he had with Patient F at a consultation in December 2015, when Patient F was 14 years old. The following exchange took place: Q. On 10 December I can see that you've noted that there's a discussion about antibiotics and Roaccutane on page 14 and then you actually prescribe on page 15? A. Okay. Q. Now one of the issues of prescribing Roaccutane is a risk of birth defects. Correct? A. Yeah. Q. I can't see anywhere in your notes an examination of that issue with [Patient F]? A. Yeah. Yeah. True. Q. Did you discuss that with her? A. No. Q. You were aware at the time that there was a risk, correct, if someone was using Roaccutane and got pregnant that there'd be a risk of birth defects? A. Yeah. Q. Why didn't you discuss that with [Patient F]? A. I forgot. DEPUTY PRESIDENT COLE: Q. I'm sorry. I didn't hear the answer? A. Why did you-- Q. Why didn't you discuss birth defects with [Patient F]? A. I didn't discuss the birth defects. Q. Yes. Why not? A. Why not? It didn't come to my mind. CHATTERJEE: The answer I had was "I forgot", your Honour. DEPUTY PRESIDENT COLE: Thank you. CHATTERJEE: Q. But you accept that you didn't discuss it with her? A. Yeah. Q. Was the consultation with her alone or did she have a parent or a guardian in the room? A. Mum. Her Mum. Q. Did you raise the issues around sexual activity with her mother at all? A. No. Q. Did you ever raise that issue with her? A. No. Q. Can I take you to page 18. You see there's a consultation between [Patient F] and Dr Shahabi? A. Yeah. Q. You see towards the bottom of that page in capital letters "Also had unprotected sex seven weeks ago"? A. Yeah. Q. Did you see that note at any stage? A. No. Q. When was the first time you saw that entry? A. This one? Q. Yes? A. No. I didn't see it. Haven't seen it. Q. Have you seen it before I took you to it just now? A. Yeah. I saw it. Yeah. Yeah. Q. Yes, I know. Before today, have you ever seen that entry? A. No. Q. So obviously when you were seeing [Patient F], you weren't reviewing the entries. Correct? A. (No verbal reply). Q. And after this you prescribed her another course of Roaccutane. Correct? A. Yeah. Q. I want to take you to the first section 150, tab 9, volume 1 and if you could go to page 67. You'll see that there's some questions that you've been asked here about the prescription of Roaccutane. Yes? A. Yeah. Q. Now you were asked by Dr Cox, top of the page, "What counselling did you provide about Roaccutane and the risks?" Your response back then was, "This is a very good medication that you may be taking for four or six months but the thing is you can't take it when you're supposed to be pregnant or if you're pregnant we need to check liver function"? A. Yeah. Q. So it seems that you were telling - you were giving evidence at the section 150 that you were giving counselling about sexual activity? A. Yeah. Q. Yes. Today you're saying you didn't give any counselling about sexual activity? A. I can't remember but I think I didn't give. Q. So this evidence that you're giving at the 150 is probably wrong? A. I'm not sure. Q. Now down the bottom of that you were asked about contraception. Dr Cox says to you, "I think you'll find most dermatologist insist that patients on Roaccutane are on contraception". Do you see that? A. Yeah. Q. And you say, "These patients were too young to be on contraception", at the bottom of that page? A. Yeah. Q. And the reference there, one is 15 or 14, the other is 16? A. Yeah. Q. [Patient F] is one of those patients, correct? A. Yeah. Q. Because [Patient A] was the older one? A. Yeah. Q. So the advice about sexual activity, did you just assume that it was irrelevant? Did you just assume because it's a 14/15-year-old girl, she's not going to be sexually active and there's no need to talk to her about it? A. I can't say that. No. I can't assume like that. Q. I'm asking you what you did. When you prescribed the Roaccutane you did not ask her questions about sexual activity. Correct? A. Could be. I can't remember but it could be. Yeah. Q. Is it possible you didn't ask her the questions because you just assumed that she wasn't sexually active? A. That could be. 1. Following the cross-examination of Dr Jaffer, General Member Macneill had the following exchange with Dr Jaffer with respect to his prescribing of Roaccutane to Patient F: Q. Dr Jaffer, I'm the community member on the panel. I'm not a registered medical practitioner. A. Yeah. Q. I'm interested in some of the questioning around Roaccutane. A. Yeah. Q. And I just want to follow up and I'll start by referring you back to the section 150 hear held in 2017 which is under tab 9 at page 67 and you were asked by counsel some questions about your understanding of the risks of Roaccutane. Do you remember that? A. (No verbal reply). Q. Do you want to refer to your answer in the section 150 hearing? It's volume 1. A. I do mention about this birth defect. Q. Okay. And what are some of the other risks? A. Other risks are - the most important one would be mood changes, depression, suicide and other less important one would be blood count become low down, sugar can go up, cholesterol can go up, all those things and so we have to do that test before we start the medication, it's prescribing. Q. So the risk that particularly I'm focusing on is the risk of suicide. A. Yeah. Q. In your treatment of [Patient F], and that's under tab 26 of volume 3, you will see on page 14 - are you able to find that? That's volume 3, tab 26. A. Tab 26, page? Q. 14. Two-thirds of the way down that page there's a consultation. Have you found that page? A. Yeah. Q. Page 14? A. Yes. Page 14. Q. So there's a consultation with you on 7 November 2015 which reads "Blood test to start Roaccutane"? A. Yeah. Q. And then subsequently on page 16 you'll see on 25 August 2016 Roaccutane 20 milligram capsule, one daily? A. Yeah. Q. And then on the next page, page 17, there's a consultation with you on 5 February 2017 and reason for visit "suicide attempt"? A. For this patient? Q. Yes? A. It didn't ring the bell to me. Q. I'm sorry? A. It didn't ring the bell to me. I don't-- Q. But these are your notes. Correct? A. Yeah. Q. These are your notes? A. Yeah. Q. So in a consultation on 5 February 2017, the patient with her parent reports a suicide attempt. Is that correct? A. Yeah. Yeah. Yeah. Q. Now if you turn to page 20, at the top of that page, on 4 June 2017-- A. Yeah. Q. --reason for visit "script for Roaccutane"? A. Yeah. Q. And there's a continuation of treatment-- A. Yeah. Q. --with Roaccutane? A. Yeah. Q. Can you tell me why it was that you continued to prescribe Roaccutane to a patient who has already one suicide attempt when there is a risk of suicide when using this drug? A. I - I - maybe I didn't read it or didn't remember or didn't realise the risk and I continued to give the Roaccutane. Q. Well, I have to confess I'm a - not - just a community member, I'm not a medical expert. I am aware that Roaccutane has this risk from the publicity in the newspapers. Would you agree with me that this is extremely negligent of you? A. Yeah. GENERAL MEMBER MACNEILL: Okay. Thank you. 1. Complaint Six has been proven and conceded, except for particular 1a. The conduct alleged, conceded and proven in relation to Complaint Six amounted to unsatisfactory professional conduct in that it demonstrated that the knowledge skill and judgment possessed and exercised by Dr Jaffer in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. Complaint Seven 1. Complaint Seven alleges that Dr Jaffer: 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, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT SEVEN Patient G was born in December 1986 and attended upon the practitioner between 6 October 2015 to 26 September 2016 for general care and management, including treatment for anxiety and insomnia, and chronic back pain management. PARTICULARS OF COMPLAINT SEVEN On the dates, and in the quantities set out, in Schedule G to this Complaint, the practitioner : a. failed to conduct an appropriate assessment prior to prescribing Temazepam and Tramadol to Patient G; b. inappropriately prescribed Temazepam and Tramadol to Patient G in circumstances where it was not clinically indicated; c. failed to prescribe Temazepam and Tramadol to Patient G in accordance with accepted therapeutic standards of what was appropriate in the circumstances, contrary to clause 34 of the PTG Reg. 1. Schedule G to the complaint is as follows: Schedule G (708417, pdf) 1. In his amended Reply, Dr Jaffer admits particulars 1b and 1c. Dr Jaffer denies particular 1a in so far as it relates to Temazepam prescribed on 4 March 2016, but admits particular 1a in so far as it relates to Tramadol. 2. Dr Howle, in his report, said that the assessment conducted by Dr Jaffer with respect to Patient G on 4 March 2016 was 'a very appropriate assessment'. However, Dr Howle then said, Dr Jaffer thereafter continued to prescribe Temazepam at regular intervals from 4 March 2016 until 26 September 2016 without further documented assessments. As Temazepam is usually prescribed for short term relief from insomnia, an ongoing assessment is normal practice. 3. Dr Howle, in his report, said that Dr Jaffer started Patient G on a particularly high dose of Tramadol, so that a detailed documented history of his injuries and treatment was called for. Patient G reported waking at 3am with shoulder pain. This should have resulted in a documented history of a physical examination of the patient's shoulder and chest. 4. Particulars 1b and 1c are substantiated by the medical records, in addition to having been admitted. 5. In cross-examination, Dr Jaffer conceded that prescribing Temazepam for four months was inappropriate. He said that he did not think about the fact that it was intended as a short-term treatment for insomnia. 6. On three occasions in 2016, during the time that he was prescribing Temazepam for Patient G, Dr Jaffer's notes say "Psychologist referral will be considered". Dr Jaffer admitted that this phrase was cut and pasted from a template, and said he does not use templates now. No psychologist referral was made by Dr Jaffer for Patient G. 7. Complaint Seven has been proven and conceded, except in so far as particular 1a relates to the assessment made on 4 March 2016 relevant to the prescription of Temazepam on that day. The conduct proven and conceded in relation to Complaint Seven amounts to unsatisfactory professional conduct under s 139B(1)(a) of the National Law. Complaint Eight 1. Complaint Eight alleges that Dr Jaffer: 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 knowledge, skill or judgement 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; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. BACKGROUND TO COMPLAINT EIGHT Between 29 August 2016 and 23 August 2017, the practitioner prescribed medication in his name using a combination of PBS and private prescriptions. PARTICULARS OF COMPLAINT EIGHT 1. On the dates and in the quantities set out in Schedule H to this Complaint, the practitioner: a. prescribed medication in his own name when it was not appropriate to do so; b. failed to record or document the medications prescribed in his own name. 2. The practitioner prescribed Primosteston in his own name for the purpose of providing it to his stepfather on the following dates: a. 5 November 2016; b. 19 January 2017; c. 7 July 2017. 1. Schedule H to the complaint is as follows: Schedule H (694995, pdf) 1. In his amended Reply, Dr Jaffer admits both particular 1 and particular 2 of Complaint Eight. 2. In cross-examination, Dr Jaffer said that he wrote prescriptions in his own name for Panadeine Forte and also for Tramadol in order to have those drugs to give to patients who could not afford them. Dr Jaffer said that he paid for the drugs from his own funds. 3. Dr Howle, in his report, said that it was usual, when a doctor wishes to have drugs on hand in the surgery, for that doctor to write a prescription "for surgery use only". Dr Howle said that Dr Jaffer should not have written the prescription in his own name. Dr Howle also said that it is "very unusual that a GP practice would need 240 Panadeine Forte and 120 Tramadol for this purpose within a 12 month period." This was put to Dr Jaffer in cross-examination, and he was asked to comment, but he said he did not wish to. 4. In cross-examination, Dr Jaffer said that the prescriptions for Primoteston Depot, which is a testosterone injection, was for a male person related to him. Dr Jaffer admitted that he had made no record of prescribing Primoteston Depot for this person. Dr Jaffer admitted that he had not ordered any blood tests or undertaken any other medical investigation prior to obtaining the Primoteston and injecting the male person with it. He simply observed that the male person was "too weak" and "80 plus". 5. Dr Howle, in his report, expressed concern at the administration of the Primoteston Depots to the male person without any history (including history of medications), examination, documentation of a therapeutic reason and documentation of the prescribing and administration. He observed that the male person could have had medical conditions causing him to be 'weak' which remained undiagnosed. Dr Howle said that the prescribing and administering of the Primoteston Depot was inappropriate and possibly dangerous to the health of the male person. Dr Howle was strongly critical of this prescribing. 6. Complaint Eight has been proven on the evidence and is admitted. The conduct alleged in Complaint Eight constituted unsatisfactory professional conduct under s 139B(1) of the National Law, as alleged. Complaint Nine 1. Complaint Nine alleges that Dr Jaffer: is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened Clause 7 of Part 4, and Schedule 2, of the Health Practitioner Regulation (New South Wales) Regulation 2010. PARTICULARS OF COMPLAINT NINE 1. The practitioner's medical records were inadequate in that he failed to record: a. information relevant to the assessment, diagnosis and treatment progress at each visit in relation to Patient B, C, D, E, F and G; b. information regarding medical and family history in relation to Patient B; c. the progress of Patient A; d. particulars of advice and/or information given to Patient A; e. plans of treatment for Patient E. 2. The practitioner's medical records with respect to Patient B and E were inadequate in that they contained insufficient information to enable another medical practitioner to carry on the management of these patients. 1. Dr Jaffer, in his amended Reply, admitted both particulars of Complaint Nine. 2. The Health Practitioner Regulation (New South Wales) Regulation 2010, (which has been superseded by the Health Practitioner Regulation (New South Wales) Regulation 2016) provided in reg 7: 7 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. (2) A contravention of subsection (1) by a medical practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) Subclause (1) does not apply to the following: (a) a public health organisation within the meaning of the Health Services Act 1997, (b) a private health facility within the meaning of the Private Health Facilities Act 2007, (c) a nursing home within the meaning of the Public Health Act 1991. (4) Subclause (3) does not affect the application of subclause (1) to a medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (3). 1. The Health Practitioner Regulation (New South Wales) Regulation 2010, in Schedule 2, clauses 1 and 2 provided as follows: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. … 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 1. Clearly, the medical records generated by Dr Jaffer were not in compliance with Schedule 2 in the manner alleged, and this constitutes unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Complaint Ten 1. Complaint Ten alleges that Dr Jaffer: is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(c) of the National Law in that the practitioner has contravened the conditions to which his registration was subject. BACKGROUND TO COMPLAINT TEN The practitioner agreed to abide by conditions placed on his registration by the Medical Council of New South Wales as a result of a section 150 hearing on 21 December 2017 which included conditions:- i. not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) [Condition 4(a)] ii. to practice under category C supervision in accordance with the Medical Council of New South Wales Compliance Policy – Supervision (as varied) and as subsequently determined by the appropriate review body [Condition 8] PARTICULARS OF COMPLAINT TEN 1. The practitioner contravened Condition 4(a) when he prescribed Phenobaritone to Patient H on 15 January 2018. 2. The practitioner contravened Condition 8 when he failed to:- a. submit his 6-monthly supervision report by 7 January 2019 in accordance with the Compliance Policy; b. complete a meeting with his supervisor in August 2019 in accordance with the Compliance Policy; c. complete monthly supervision meetings between 16 December 2018 and 14 April 2019 in accordance with the Compliance Policy. 1. Dr Jaffer, in his Reply, admitted both particular 1 and particular 2 of Complaint Ten. 2. Plainly, the breaches of the conditions alleged in Complaint Ten constitute unsatisfactory professional conduct under s 139B(1)(c) of the National Law. 3. Dr Jaffer, in cross-examination, admitted that he had read the conditions shortly after they were imposed, and also read the Medical Council of New South Wales' Compliance Policy – Supervision. Dr Jaffer admitted that he understood that breaching his conditions would be serious (transcript p 70). 4. Dr Jaffer admitted that he missed his supervision meeting in August 2018. He said that he was having trouble arranging a meeting with his supervisor. Dr Jaffer had a telephone conversation with an officer of the Medical Council on 23 January 2019, following a call received by that officer from Dr Jaffer's supervisor. Dr Jaffer did not mention, in that call, that he had missed his supervision meeting in August 2018 and that he did not have a meeting arranged with his supervisor for January 2019, even though the officer reminded him that his supervision reports had been due on 7 January 2019 (transcript, p71-72). Complaint Eleven 1. Complaint Eleven is as follows: The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. 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 PARTICULARS OF COMPLAINT ELEVEN 1. Each particular of Complaints Two to Five justifies a finding of professional misconduct. In the alternative, when two or more of the particulars are taken together, a finding of professional misconduct is justified. 1. In his reply, Dr Jaffer admits Complaint Eleven. 2. Professional misconduct is explained in Chen v Health Care Complaints Commission [2017] NSWCA 186 by Basten J at [20]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. Dr Jaffer's admission in relation to Complaint Eleven was appropriate. In our view each of Complaints Two to Five alleges conduct which is sufficiently serious to constitute professional misconduct under the National Law. 2. Complaints Two, Three, Four and Five relate to the prescription by Dr Jaffer, over several years, of drugs of addiction to patients who were exhibiting the signs of addiction and drug seeking behaviour. A common thread throughout these complaints is Dr Jaffer's tendency to seek to provide his patients with the drugs they request, rather than exercising his medical judgment. 3. The transcript of the proceedings in relation to Dr Jaffer under s 150 of the National Law on 21 December 2017 was tendered in evidence as part of the applicant's documents. At page 7-8 of that transcript, the following exchange took place between Dr Jaffer and Dr Cox, a member of the panel: Dr Cox: So you enjoy the diversity, but do you think you have a particular skillset in one particular area that is your strength. Dr Jaffer: I'm just a general GP. Dr Cox: Do you feel that there are any areas of medicine that you find more challenging or you feel that you have a weakness in. Dr Jaffer: I think I'm good in communication, make everyone happy, try to make everyone happy. Dr Cox: Nothing you see as a weakness. Dr Jaffer: Weakness, maybe I'm too soft and just say, "Okay, and maybe next time will you fix that up?" or, you know, try not to make them unhappy, if possible, as much as I can. 1. That exchange was put to Dr Jaffer in cross-examination before us and he said: A. Maybe I'm – I was soft but no more now. I'm very strict now. 1. His wish to please his patients led Dr Jaffer to continue to prescribe drugs of addiction, in some cases for four or five years, to patients who would have been recognised as drug seeking by a practitioner of an equivalent level of training or experience as Dr Jaffer. On the evidence, Dr Jaffer recognised this in relation, at least, to Patient D, but he, nevertheless, kept prescribing the drugs of addiction requested. 2. In the context of practising as a general practitioner, Dr Jaffer's wish to please, which might, in other contexts, be considered to be a positive aspect of his character, manifests in such a way that it can be described as a personality trait that negatively impacts the practitioner's clinical judgment and patient care, and is thus a 'defect of character' in the sense referred to in Chen. 3. We acknowledge that Dr Jaffer is now aware of the risks associated with this aspect of his character, and aspires to be 'strict' in future. Protective Orders 1. The purpose of protective orders under the National Law is to protect the patients of the individual practitioner and to protect the interests of the public at large. The protection of the public interest includes the protection of the standing of the medical profession and the maintenance of the confidence of members of the public in the high standards of medical practitioners. Protective orders signal to medical practitioners the importance of complying with professional standards and the risks of failing to do so, and, in that way, operate as a deterrence to non-compliance (see Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]). 2. A character reference from Dr Malia, a friend of Dr Jaffer, was tendered in Dr Jaffer's case. We accept Dr Malia's evidence that Dr Jaffer is well-respected in his community. 3. Dr Aktar, a general practitioner, gave evidence in Dr Jaffer's case. Dr Aktar met Dr Jaffer in 2007 in the course of her internship. They maintained contact. They worked together, at the same practice, in 2014 and 2015. Dr Aktar now works in her own, sole, practice. Dr Aktar has read the complaint in this matter. 4. Dr Aktar said that Dr Jaffer has been working for her as a phlebotomist, three days per week. Dr Jaffer also undertook an 'observership' with Dr Aktar. Initially this involved him working for two hours or three on two days per week. Dr Jaffer would, with the patient's permission, sit in on Dr Aktar's consultation. Dr Aktar said that Dr Jaffer would take notes, and that she would then go through those notes with him at a weekly meeting. This continued for six months. Subsequently, Dr Jaffer's attendance at Dr Aktar's consultations occurred on an ad hoc basis. Dr Aktar and Dr Jaffer also discussed medical topics of interest and new developments in medicine, such as the availability of new medications. 5. Dr Aktar is prepared to supervise Dr Jaffer and employ him in her practice as a general practitioner, even if it were a condition on his registration that he not prescribe Schedule 8 and Schedule 4D drugs. Dr Aktar estimates that Dr Jaffer would see between 15 and 20 patients per day and proposes to discuss each patient with him, initially. 6. We take into account the evidence provided in Dr Jaffer's case of the continuing medical education undertaken by him, both whilst he was practising and subsequently. 7. In the course of his evidence before the Tribunal, Dr Jaffer was questioned on several occasions about the content of the courses he had taken. His memory about the content of the courses was very poor or non-existent. 8. Dr Jaffer undertook a course in pain management in 2015. He said, in cross-examination, that he learned, in that course, about the proper prescription of opiates. Nevertheless, subsequent to attending that course, he continued to prescribe opiates inappropriately, without adequate assessment, to drug seeking patients, in quantities which well exceeded any legitimate requirement (see transcript p 75-76). 9. It is apparent to us that, although Dr Jaffer is capable of completing continuing professional development courses, he subsequently has difficulty recalling the information learned, or at least articulating it. He also has difficulty applying what he has learned. 10. We note that Dr Jaffer gave some evidence about the financial effect that a continuing inability to practice would have upon him. Such issues are of peripheral relevance in disciplinary proceedings. 11. The complaint before us concerns, among other things, prescribing by Dr Jaffer to seven patients in addition to a family member of Dr Jaffer. Dr Jaffer's prescribing of Roaccutane to Patient A and Patient F in the circumstances alleged and evident from the medical records could have had tragic consequences for those patients. He failed to warn them of possible side effects, such as suicidal impulses, or, in the event that the patient were to become pregnant, the potential for the foetus to be affected by the teratogenic effect of Roaccutane. A suicide attempt by Patient F was recorded by Dr Jaffer in his medical notes on 5 February 2017 during the period of time within which he was prescribing Roaccutane to her, and he continued to prescribe Roaccutane. In addition, it was evident from the medical records that Patient F was sexually active, but Dr Jaffer overlooked this and assumed, on the basis of her age, that she was not. 12. Dr Jaffer's prescribing of drugs of addiction to Patients B, C, D and E over years could also have had tragic consequences for those patients, and certainly did not, in most instances, assist them from a medical point of view. The inadequacy of Dr Jaffer's assessment and notes added to the risk. 13. Dr Jaffer's relative, who was the recipient of the Primoteston Depots which Dr Jaffer prescribed in his own name, could have been suffering from any number of medical conditions which were causing his weakness, but Dr Jaffer undertook no investigation or referral before administering the drug. 14. Dr Jaffer's registration was under conditions for a period of time, during which he did not comply with his conditions, as set out above in our consideration of Complaint Ten. 15. In all of the circumstances, neither the imposition of conditions upon Dr Jaffer's registration nor suspension are adequate to protect patients, maintain the confidence of the public in the high standards of the medical profession and deter non-compliance by other medical practitioners. Orders 1. We make the following orders: 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the patients referred to as Patient A, Patient B, Patient C, Patient D, Patient E, Patient F, Patient G and Patient H in the Complaint forming part of the Application in this matter is prohibited. 2. Under s 149C(1)(b) of the Health Practitioner Regulation National Law Dr Jaffer's registration as a medical practitioner is cancelled. 3. Under s 149C(7) of the Health Practitioner Regulation National Law, an application for the review of Order (2) may not be made until after three years from the date of this decision. ********** 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 Amendments 15 October 2021 - Cover sheet - Patient H added 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: 15 October 2021