Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mohammadi [2021] NSWCATOD 172 Hearing dates: 11 - 13 November 2020, 26 - 28 April 2021 Date of orders: 01 November 2021 Decision date: 01 November 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr H Haikal-Mukhtar, Senior Member Dr J Aitken, Senior Member A/Prof P Macneill, General member Decision: 1. Dr Mohammadi engaged in unsatisfactory professional conduct and professional misconduct. 2. Dr Mohammadi is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 3. By 19 November 2021, the parties are to file and serve any material relied on for the Stage 2 proceedings. Catchwords: HEALTH — professional registration and discipline — professional misconduct — where general practitioner prescribed fentanyl to patients without conducting an adequate clinical assessment, in excessive quantities, for a non-therapeutic purpose, without appropriate and timely referrals for specialist review and advice, without responding appropriately to drug seeking behaviour, without obtaining an authority — whether conduct amounts to unsatisfactory professional conduct – whether conduct amounts to professional misconduct Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 HCCC v Nemeth [2012] NSWMT 4 Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Lo [2016] NSWCATOD 119 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Suri [2016] NSWCATOD 54 Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 at [40]. Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep) Texts Cited: Royal Australian and New Zealand College of Anaesthetists, 'Opioid Dose Equivalence' – calculation of oral Morphine Equivalent Daily Dose online, viewed 5 October 2017 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Masoud Mohammadi (Respondent) Representation: Counsel: A Britt (Applicant) M Hutchings (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2020/00126090 Publication restriction: Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure of the names of the patients set out in the Complaint made against the Respondent. REASONS FOR DECISION Overview 1. The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders in relation to Dr Mohammadi. The allegations relate to prescribing fentanyl to 15 patients between October 2014 to July 2017. Fentanyl is a synthetic opioid indicated in the management of chronic pain requiring opioid analgesia. It is an extremely potent and addictive narcotic and is classified as a "drug of addiction" under Schedule 8 to the Poisons List, which is proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) (Poisons Act). Practitioners need an authority from the Ministry of Health before prescribing fentanyl to a "drug dependent person". 2. When prescribed, fentanyl may be administered in a transdermal patch applied to the patient's skin. Fentanyl accumulates to form a 'depot' in the skin below the patch, from where it gradually enters the circulation. Each patch lasts 3 days (72 hours). One fentanyl 100mcg/hr transdermal patch applied every 3 days is the equivalent of approximately 300mg of morphine orally daily. The risk of drug dependence for people using fentanyl patches is high. Fentanyl can be misused with the active ingredient extracted from patches and injected or sold on the black market. 3. The application form for an authority to prescribe a "drug of addiction" under Schedule 8 to the Poisons List, proclaimed under the Poisons Act (a Schedule 8 drug) for pain management asks various questions. Those questions include whether the practitioner considers the patient to be drug dependent (that term is defined in the application form), whether the patient is using drugs illegally, is "doctor shopping" or has been using drugs for longer periods than appropriate. Practitioners are also required to indicate whether the patient is on an Opioid Treatment Program (OTP), including a methadone program. If that is the case, a letter from the authorised OTP prescriber supporting the treatment must be attached. The practitioner is also required to indicate the proposed maximum daily dose of fentanyl . 4. In October 2015 concerns about Dr Mohammadi's prescribing of fentanyl patches were first brought to the attention of the Pharmaceutical Regulatory Unit (PRU). Dr Mohammadi was interviewed in September 2017 and voluntarily surrendered his authority to prescribe fentanyl patches following that interview. On 1 November 2017, by consent, practice conditions were imposed on Dr Mohammadi's medical registration under the Health Practitioner Regulation National Law (NSW) (the National Law), s 41P. The conditions imposed were "1. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 2. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions." 1. On 3 November 2017 the HCCC consulted with the Medical Council and decided to conduct an investigation into Dr Mohammadi's prescribing practices. 2. Dr Mohammadi has a high level of experience. He completed his medical studies in Iran in 1987. He worked as a medical practitioner in Iran from 1990 up until 1997, when he migrated to Australia. Dr Mohammadi initially worked as an intern at John Hunter Hospital from 2001 until 2002. He obtained his fellowship of the RACGP in 2006 and worked as a general practitioner in group practices in Parkes, Ulladulla and Lemon Tree Passage until 2013. 3. Dr Mohammadi began prescribing fentanyl in 2013 when he started practising on his own at the the Auburn Medical Health Centre. He says he did not discuss with colleagues the requirements for prescribing Schedule 8 drugs. He has not completed any courses or attended any training on that topic. He says he had a basic knowledge from studying in Iran, but not in Australia. 4. Complaint 1.1 is that Dr Mohammadi failed to conduct an adequate clinical assessment of 12 patients before prescribing fentanyl. Dr Mohammadi should have made inquiries with the Commonwealth Prescription Shopping Program and the NSW Health Opiate Treatment Program and obtained relevant medical records. He should also have conducted urine drug screens and contacted previous practitioners to obtain relevant information. Dr Mohammadi admits this particular. 5. Complaint 1.2 is that Dr Mohammadi prescribed five patients with fentanyl in excessive quantities and strengths. Dr Mohammadi admits that particular for Patients A and D, but not for Patients H, J and L. 6. Complaint 1.3 is that, for three of these patients, the purpose of prescribing fentanyl did not accord with the recognised therapeutic standard. Dr Mohammadi denies that particular. 7. Complaint 1.4 is that Dr Mohammadi did not make appropriate and timely referrals for specialist review and advice for 13 patients. Complaint 1.5 is that Dr Mohammadi did not respond appropriately when seven patients exhibited drug seeking behaviour. Complaint 1.6 is that for 11 patients, Dr Mohammadi should have obtained an authority before prescribing fentanyl because he knew or should have known that these patients were drug dependent persons. Dr Mohammadi denies each of these particulars. 8. Complaint 1.7 relates to Patient O who was a minor. It is alleged that Dr Mohammadi failed to obtain an authority to prescribe that patient Ritalin. Dr Mohammadi admits that particular. 9. Complaint 2 is that Dr Mohammadi is guilty of unsatisfactory professional conduct by failing to make adequate records in relation to Patient O's treatment with Ritalin. Dr Mohammadi admits this particular. 10. Complaint 3 is that Dr Mohammadi is guilty of professional misconduct. The HCCC submits that the complaints amount to "unsatisfactory professional conduct", either individually or cumulatively. The complaints are also said to amount to "professional misconduct". Dr Mohammadi denies that he is guilty of professional misconduct. Issues Summary of issues 1. There are three main issues: has the HCCC proven the factual basis of each allegation; is Dr Mohammadi guilty of unsatisfactory professional conduct; and, if so, is he also guilty of professional misconduct. In this decision we will only decide on those issues. We will decide on the appropriate orders at another hearing. We will set out the principles relating to each of the three issues we have identified before addressing the allegations in detail. Factual issues and credibility 1. The HCCC has the burden of proving the facts to the civil standard of proof which is on "the balance of probabilities". When making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings and the gravity or seriousness of the allegations. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). 2. We should not be reasonably satisfied that something has happened or that Dr Mohammadi had a particular motivation if the allegation is only supported by "inexact proof, indefinite testimony or indirect inferences". Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. Unsatisfactory professional conduct 1. After making factual findings, we must then decide if what has happened amounts to "unsatisfactory professional conduct" as defined in the National Law. For Complaint One the HCCC alleges that Dr Mohammadi is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law. Section 139B(1)(a) defines unsatisfactory professional conduct to include: 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. 1. When deciding whether Dr Mohammadi is guilty of unsatisfactory professional conduct under s 139B(1)(a) we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons we refer to that standard as the "relevant" standard. 2. The Second Complaint relates to record keeping. Dr Mohammadi is said to be guilty of unsatisfactory professional conduct under ss 139B(1)(a) and 139B(1)(b) of the National Law in that he has: "Contravened the Health Practitioner Regulation (NSW) Regulation 2010 (subsequently repealed) in failing to keep adequate records in respect to Patient O's treatment with methylphenidate (Ritalin)." Professional misconduct 1. Complaint Three is that Dr Mohammadi is guilty of professional misconduct. If we find Dr Mohammadi to be guilty of unsatisfactory professional conduct, the third issue is whether he is also guilty of professional misconduct. That depends on whether Dr Mohammadi's "unsatisfactory professional conduct" is "of a sufficiently serious nature to justify suspension or cancellation of his registration". Professional misconduct is defined in s 139E of the National Law: 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. 1. If we find Dr Mohammadi guilty of professional misconduct, we have power to suspend or cancel his registration although we are not obliged to do so: National Law, s 149C(1)(b). We will decide on the orders we should make at a separate hearing. 1.1 Inadequate clinical assessment of 12 patients (B, C, D, E, F, G, I, J, K, L, M & N) The complaint 1. This complaint is that Dr Mohammadi failed to conduct an adequate clinical assessment of these patients before commencing and when continuing to prescribe fentanyl to those patients in that he: 1. failed to make inquiries to sufficiently inform himself about the patients' drug dependency status including with the Commonwealth Prescription Shopping Program and the NSW Health Opiate Treatment Program; 2. failed to conduct urine drug screens; 3. failed to contact the patients' previous treating practitioners to obtain the details of the patients' prior treatment, history and drug dependency status; 4. failed to request copies of the patients' medical records, relevant pathology tests and imaging results, specialist reports and discharge summaries. 1. The matters listed above go to the question of whether Dr Mohammadi should have obtained relevant information to allow him to adequately assess these twelve patients before prescribing fentanyl. The inquiries as to their drug dependency status should have been made with the Commonwealth Prescription Shopping Program and the NSW Health Opiate Treatment Program. Each of these patients reported that they were taking some kind of pain killer medication when they first saw Dr Mohammadi. Several were taking fentanyl either by itself or in combination with temazepam or Panadeine Forte. Two were taking OxyContin and one was taking OxyContin in combination with Panadeine Forte. 2. At an interview conducted by the PRU in September 2017, Dr Mohammadi stated that he always ensures his patients are not 'known' to the Prescription Shopping Information Service (PSIS). In his response to questions posed by the PRU in September 2018, Dr Mohammadi wrote that his routine practice was to telephone that service to make enquiries about patients at risk of doctor shopping. He did consult the PSIS for six patients. However, for Patients F and J, Dr Mohammadi continued to prescribe fentanyl without an authority even though they were identified by the PSIS as being prescription shoppers. 3. In 2017, 11 of Dr Mohammadi's patients were on the NSW Opioid Treatment Program (OTP), otherwise known as the methadone program. Dr Mohammadi told the PRU in September 2017 that he was not aware of regular patients having been on that program. Dr Mohammadi said he must have misunderstood what he was being asked when he told the PRU inquiry that he usually sends his patients to the methadone program. He admitted that he did not ask any patient whether they were on the methadone program. He also said that he has experience looking at a patient's face to tell if they are addicted or not from their behaviour, but sometimes he can miss it. 4. Dr Mohammadi did not request urine drug screens for any of the patients nor did he contact any previous treating practitioners to obtain a history of prior treatment or drug dependency. Dr Mohammadi did not request copies of any previous tests or reports for these patients. Dr Mohammadi admits this particular. Patient B 1. Patient B was taking Durogesic (fentanyl patches) and temazepam at the time of the initial consultation. Patient B did not tell Dr Mohammadi until the third consultation that he had been using fentanyl 100mcg/hr patches for 6 months. Dr Mohammadi conceded that when he was given that information, he should have been concerned that Patient B was drug dependent and was looking for a doctor who would prescribe him with fentanyl. He did not ask Patient B why he had changed from his previous general practitioner and pain team to consult him. 2. We agree with the opinion of the HCCC's expert witness, Dr Kertesz, that Dr Mohammadi should have requested the previous treating doctor's management plan, conducted a urine drug screen and checked the opiate treatment status and prescription shopping service at or shortly after the initial consultation. Dr Kertesz regarded the conduct as significantly below the relevant standard, but determined it did not invite strong criticism. We find that the assessment was significantly below the relevant standard. Patient C 1. Dr Mohammadi's evidence was that he assessed the level of pain every time he prescribed fentanyl to Patient C. Patient C had "maximum pain" so Dr Mohammadi gave him a "maximum dose" of fentanyl . However, there is no history of such an assessment in the clinical notes. Dr Mohammadi said that he conducted a whole body examination including for back pain, but he might have forgotten to write that down in his notes or the notes might have disappeared from the computer system. 2. In notes dated 13 June 2017, Dr Mohammadi recorded that Patient C "suffered from pain and limitation in lower back". Dr Mohammadi said he checked his full movement, range of motion, level of pain and looked at his back for his level of deformity. He did not record these observations in his notes and said that perhaps he had forgotten to write it down. If Dr Mohammadi had conducted such a detailed examination, he would have recorded at least some of the examination results in his notes. We are not satisfied that he did in fact conduct the detailed examinations he says he did. He also provided Certificates of Capacity to Workcover, but agreed that details of any examination are not recorded on those certificates. 3. In the notes for 24 May 2017, Dr Mohammadi recorded the reason for Patient C's visit as "snoring". He said in evidence that he examined Patient C's back again, but must have forgotten to record that in his notes. Again, we reject that evidence as it is not credible. 4. For Patient C, Dr Kertesz noted that Dr Mohammadi's initial assessment of him on 9 February 2017 was inadequate with respect to all aspects of history, examination, investigation, diagnosis and management. There was no reference to possible drug dependence issues. Patient C was taking Durogesic at the time of the initial consultation. In those circumstances further assessment of the previous treating doctor's management plan, prior prescribing and biochemistry results should have been obtained. A urine drug screen should have been requested and a sample taken at the time of the consultation. In addition, it was Dr Kertesz's view that Dr Mohammadi should have checked the opiate treatment status and prescription shopping hotline at, or shortly after, the initial consultation. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient D 1. Dr Mohammadi could not remember whether he had referred Patient D to a pain specialist, but agreed that it would have been appropriate to do so. We are satisfied that he did not refer this patient to a pain specialist. If he had done so, it would have been recorded in his notes or the referral letters to the pain specialist or other specialist would have been included in his notes. 2. According to Dr Kertesz, Dr Mohammadi's initial assessment of Patient D on 1 February 2014 was inadequate with respect to possible dependence issues. Patient D was taking OxyContin (Oxycodone) at the time of the initial consultation. In those circumstances Dr Mohammadi should have conducted a further assessment of the previous treating doctor's management plan, prior prescribing and biochemistry results. A urine drug screen should have been requested and a sample obtained at the time of the consultation. Dr Mohammadi should also have checked this patient's opiate treatment status and phoned the prescription shopping service. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient E 1. Patient E initially consulted Dr Mohammadi on 14 February 2014. He was using Durogesic at the time of the consultation. Dr Mohammadi said he did not refer him to a pain specialist because the aim was not to treat his pain. The aim was to drop the dosage slowly to avoid symptoms of withdrawal while treating the addiction. However, Dr Mohammadi did not write in his notes that he was treating Patient E's addiction. Instead he wrote that the reason for the visit was 'chronic pain'. He now concedes that he should have sent this patient for specialist review. 2. Dr Mohammadi should have made the same inquiries as outlined above for Patient D. Dr Kertesz regarded this conduct as being significantly below the standard and invited strong criticism. We agree. Patient F 1. Dr Mohammadi saw Patient F for 21 months from September 2013 to June 2015. She was a victim of domestic violence. This patient was using Durogesic at the time of the consultation but Dr Mohammadi prescribed 75mcg/hr patches of fentanyl. He recorded that she is 'not identified as a prescription shopper'. He said that if he contacted the hotline, he would have recorded it in his notes unless he forgot. Dr Mohammadi acknowledged that he should have referred Patient F for specialist review. 2. The initial consultation on 28 September 2013 was brief and inadequate in relation to drug dependence issues. Dr Mohammadi should have made the same inquiries as outlined above for Patient D. In particular, since Patient F said she had recently moved from a regional town, Dr Mohammadi should have contacted her previous GP. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient G 1. Dr Mohammadi's clinical notes record that Patient G had recently been released from hospital. According to Dr Kertesz, Dr Mohammadi should have contacted the hospital to obtain a discharge summary. That failure, together with the fact that Dr Mohammadi should have made the same inquiries as listed for Patient D, led Dr Kertesz to regard this conduct as being significantly below the relevant standard. We agree. Patient I 1. The initial consultation in July 2014 was inadequate with respect to possible drug dependence issues. Patient I was using Durogesic and Panadeine Forte at the time. Dr Mohammadi did not make the inquiries outlined in this particular for Patient D. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient J 1. The first consultation with this patient was on 18 July 2014. Patient J was using Durogesic at the time and Dr Mohammadi should have made the same inquiries as for Patient D. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient K 1. Patient K was using Oxycontin at the time of the initial consultation. Dr Mohammadi discussed the option of ceasing Oxycontin and commencing Durogesic on a withdrawal basis. He should have made the same inquires as for Patient D. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient L 1. Patient L consulted with Dr Mohammadi on 12 July 2014. She said she had been using Durogesic 75mcg/hr but was unable to see her usual GP. Dr Kertesz regarded Dr Mohammadi's conduct in failing to adequately assess Patient L as being significantly below the relevant standard. We agree. Patient M 1. The initial consultation was on 15 February 2014. That consultation was brief and inadequate with respect to possible drug dependence issues. Dr Mohammadi took a history and discussed the option of ceasing Oxycontin and commencing Durogesic with a view to gradually decreasing the dose. Dr Mohammadi asked Patient M if she was doctor shopping, but she said she was not. Dr Mohammadi established that Patient M was not identified as a 'doctor shopper' at the time of the consultation. However, he should have obtained the previous treating doctor's management plan, details of prior prescribing and blood results. Dr Mohammadi should also have requested a urine drug screen and checked the Opiate Treatment status at or shortly after the initial consultation. 2. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient N 1. For Patient N, the initial consultation on 24 October 2013 was acceptable apart from the fact that Dr Mohammadi made no inquiry about possible drug dependency issues. This patient was using Oxycontin and Panadeine Forte. Dr Mohammadi prescribed buprenorphine 20mcg/hr patches at the initial consultation. There is nothing in Dr Mohammadi's notes as to the dose of Oxycontin that the patient was taking and hence the oral morphine equivalent daily dose (oMEDD) conversion from Oxycontin to buprenorphine is not possible. Dr Mohammadi's failure to do a proper assessment as to drug dependency and his failure to do a proper oMEDD conversion from Oxycontin to buprenorphine transdermal make his conduct below the relevant standard 2. Dr Mohammadi should have obtained the previous treating doctor's management plan, prior prescribing details and blood results. He should have requested a urine drug screen and checked the Opiate Treatment status at or shortly after the initial consultation. We agree with Dr Kertesz that this conduct was significantly below the relevant standard. Conclusion 1. Dr Mohammadi admitted this particular. The evidence he gave, and Dr Kertesz's opinion, were consistent with that admission. Dr Kertesz's opinion was that the conduct was significantly below the standard and invited strong criticism for each patient, apart from Patient B where Dr Kertesz's opinion was that this conduct was below the standard but did not invite strong criticism. Dr Mohammadi's lack of knowledge and appreciation that these inquiries were necessary is significantly below the relevant standard for each of these patients. We find that this conduct is proven and amounts to unsatisfactory professional conduct. 1.2 Prescribing fentanyl to five patients in excessive quantities (A, D, H, J & L) Background 1. This part of the complaint is that Dr Mohammadi prescribed fentanyl in excessive quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to cl 79 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (Poisons Regulation). Dr Mohammadi denies this particular and submits that the HCCC has not discharged its onus of proof. 2. Clause 79 makes it an offence to issue a prescription for fentanyl patches "in a quantity . . . . that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances." 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. Dosage and amount prescribed in a given period 1. There are two elements to the quantity of fentanyl prescribed. The first is the dosage or strength. Fentanyl patches come in five dosages; 12, 25, 50, 75 and 100mcg/hr. The second element is the amount prescribed in a given period. Dr Mohammadi's understanding of the strength of fentanyl 1. Dr Mohammadi did not understand how strong fentanyl is compared with morphine. At an interview conducted by the PRU in September 2017, Dr Mohammadi estimated that a 100mcg/hr fentanyl patch would equate to roughly 180mg of oral morphine delivered over five days. In fact such a dose is closer to a dose of 300mg of oral morphine a day. (See Royal Australian and New Zealand College of Anaesthetists (ANZCA) entitled 'Opioid Dose Equivalence' – calculation of oral Morphine Equivalent Daily Dose online, viewed 5 October 2017) 2. The oMEDD (oral Morphine Equivalent Daily Dose) for the transdermal form of fentanyl 100mcg/hr is between 240 and 400mg of morphine per day and the average is 300mg. Dr Kertesz expressed the view that Dr Mohammadi's knowledge of the strength of fentanyl was inadequate and incorrect. We agree, although we note that Dr Kertesz incorrectly stated in the supplementary report that the strength of fentanyl 25mcg/hr patches was an oMEDD of 360mg of morphine. The correct figure is that 100mcg/hr patches have an oMEDD of 360mg of morphine. 3. Dr Mohammadi agreed that he would not prescribe 300mg of morphine a day to a patient because of the high risk of side effects and possible death. As to why Dr Mohammadi commenced some patients on the highest dose of fentanyl (100mcg/hr) he said that if the patient said they were on that dose, he continued with it. For patients who were not taking fentanyl , he realises now that it was a mistake to start any patient on a dose of 100mcg/hr. When questioned about the possible harms of commencing a patient on the highest dose of fentanyl , Dr Mohammadi understood that it could suppress breathing and lead to unconsciousness and death. Dr Mohammadi said that he did not hurt any patients. 4. At Patient A's third visit on 13 December 2016, he told Dr Mohammadi that Panadeine Forte was not working for him. At the next visit on 22 December 2016, Dr Mohammadi prescribed fentanyl patches at 75mcg/hr to apply every three days. That is the second highest available dose of fentanyl. He continued to prescribe 5 patches of 75mcg/hr until 22 February 2017 when he increased the dose to 100mcg/hr, the highest dose available. Dr Mohammadi continued Patient A on that dose until July 2017. Dr Mohammadi said he did so because Patient A had had an accident at work and was suffering from very serious pain and had difficulty walking. Dr Mohammadi said he was sure Patient A was not abusing fentanyl . Dr Mohammadi did not inform himself as to the strength of fentanyl which he could easily have done by consulting an appropriate reference such as the approved product information or by calculating the oMEDD. 5. We agree with Dr Kertesz's opinion, expressed in his first report, that doses in excess of 75mcg/hr at the initiation of opioid therapy are contraindicated "because of the need to individualise dosing by titrating to the desired analgesic effect". 6. Complaint 1.2 is proven to the extent that it relates to the strengths or dosages of fentanyl prescribed to Patient A. Amount supplied in a given period 1. The second element of the quantity of the prescription is over-supply. To determine whether Dr Mohammadi has oversupplied fentanyl to any of these patients, the total period of time must be divided by the period for which each prescription lasts. Dr Mohammadi instructed each patient to apply a new patch every three days. Therefore, a script for 5 patches should last for 15 days and a script for 10 patches should last for 30 days. In several cases a patient made an appointment for a new prescription before it was due. On a few occasions, Dr Mohammadi refused to prescribe 'early' but on other occasions he wrote a new prescription. The risks associated with oversupply include that the patient may be taking a greater quantity of the medication than intended, or that the patient may be selling fentanyl on the black market. 2. The evidence about Dr Kertesz's calculations was contentious because the data on which it was based and some of Dr Kertesz's assumptions were either not definitive or not correct. After he gave evidence, Dr Kertesz was asked to review his first report in relation to the allegation in Complaint 1.2 of excessive prescribing. He prepared a supplementary report dated 9 January 2021. There were also some errors in that report. Below we discuss three areas of contention. 3. First, Dr Kertesz based his calculations on a total period of time which included a 30 day period after the end of the last prescription. When asked why he used that figure, rather than 15 days, he said it was reasonable because the scripts were for a month. However, not all scripts were for 10 patches (30 days). Some were for 5 patches (15 days). We have calculated the period of time by adding 15 days where the last script was for 5 patches and 30 days where the last script was for 10 patches. Those calculations more accurately reflect the overall period of time the patches would have lasted if taken according to the directions. 4. Secondly, the number of scripts that Dr Mohammadi wrote was in dispute. The schedules to the complaint have three headings, "Medicare records', "Pharmacy records' and 'Medical records'. Total figures are recorded under each of those headings. The Medicare records are from the Australian Government's health insurance scheme. That figure does not include private scripts. The Pharmacy records are those from particular pharmacies. Informal evidence was given, which we accept, that in preparing the schedules inquiries were only made of certain pharmacies. Finally, the 'Medical records' are from Dr Mohammadi's clinical notes. 5. We have based our calculations primarily on the records of Dr Mohammadi. The additional information from Medicare records and pharmacy records, while helpful, are more likely to contain inaccuracies or be incomplete. Only a limited number of pharmacies were sampled to obtain the pharmacy record data. Medicare record data would not record any private scripts supplied and may contain data entry errors. 6. Thirdly, in some cases there is a record of two scripts being dispensed on the same day. Dr Mohammadi wrote two scripts when the patient was tapering off the medication and he wanted to give a dosage which was not available in standard quantities. For example, a composite dose of 37mcg/hr of fentanyl could be obtained by using a 25mcg/hr patch and a 12mcg/hr patch concurrently. Dr Kertesz counted these scripts twice even though they would have been applied at the same time to provide a total dose of 37mcg/hr. We have counted these two scripts as one. 7. When asked what period would be significant in terms of oversupply, Dr Kertesz said that if there was an excess of 5 or 10 patches being prescribed, that may be regarded as excessive if there is no good explanation for the oversupply. That would equate to a period of between 15 and 30 days of oversupply. He agreed that you would need to read the patient's notes in conjunction with the schedule to determine whether any oversupply was justified. We have taken a more conservative approach. Where the oversupply is for at least 42 days (6 weeks) and that oversupply is not adequately explained in the patient's notes, we consider Dr Mohammadi's conduct to demonstrate that the knowledge, skill or judgment he possessed, or the care he exercised, to be significantly below the relevant standard. 8. Because of the issues with Dr Kertesz's evidence for this part of the complaint, we have done our own calculations of the extent of any oversupply. Patient A 1. Prescribing for fentanyl commenced on 22 December 2016 when Dr Mohammadi wrote a script for 5 patches of 75mcg/hr. The same amount of fentanyl was prescribed on 3 January, 18 January, 2 February and 13 February 2017. However, on 22 February 2017, Dr Mohammadi increased Patient A's dose to 100 mcg/hr because he believed that the lower dose "was not working for him". Dr Mohammadi's evidence was that Patient A "came frequently" and was "unable to walk". 2. Dr Mohammadi initially denied that he had ever prescribed 10 patches at a time saying that he would have needed an authority to do so. Dr Mohammadi was shown the schedule recording that he had prescribed 10 patches (which should have lasted 30 days) on 11 April 2017, 26 April 2017, 10 May 2017, 13 June 2017 and 11 July 2017. Dr Mohammadi then remembered that this patient was on workers compensation and that he had prescribed 10 patches as he was providing the item as a private script. Because much of the prescribing to Patient A was by way of private scripts, it is not captured by the Medicare records. 3. On the basis of Dr Kertesz's calculations, during the period from 22 December 2016 to 11 July 2017, Dr Mohammadi over-prescribed fentanyl by 45 days. One error Dr Kertesz makes is to base the calculation from the first visit to the practice recorded in the notes (13 December 2016) rather than from the day of first prescribing (22 December 2016). 4. It is appropriate to add an extra 30 days to the time period prescribed for. For Patient A the total number of days Dr Mohammadi prescribed fentanyl for was 231. Scripts for 95 patches were prescribed which would be a sufficient quantity for 285 days. That means that there was an oversupply of 54 days over a 231 day period. That is a significant amount of oversupply. That oversupply is not adequately explained in the patient's notes. Dr Mohammadi admits this particular and we find it to have been proved. Patient D 1. The period of supply was from 12 May 2014 to 29 December 2015. The overall period was 596 days (more than 18 months). The last script was for 5 patches so we have added 15 days. Taking into account the periods where two different doses were prescribed to produce a composite dose, there were prescriptions written for 225 patches which would have been a sufficient quantity for 675 days. The oversupply was for a period of 64 days. 2. Dr Kertesz's calculation was that the excess prescribing period is 49 days in a period of approximately 19 months. The difference of 15 days comes about because Dr Kertesz only added 15 days, wrongly assuming the last script was for 5 patches, instead of 10 patches. 3. That is a significant amount of oversupply. That oversupply is not adequately explained in the patient notes. We find this particular to have been proved. Patient H 1. For Patient H, the schedule reflects that there was no record of a consultation in Dr Mohammadi's medical records for 20 March 2015 nor any record in those notes of two scripts having being written on that day. However, there was a record of a pharmacy script number and the name of the pharmacy which dispensed those scripts. We find that that Dr Mohammadi wrote those scripts because they appear in the Pharmacy Dispensing Record and because there is a Medicare Billing Record for a consultation on that day. When he was shown the Medicare Billing Record, Dr Mohammadi conceded that he would have had a consultation with Patient H on that day and written the two scripts. 2. One of the two scripts was for 12mcg of fentanyl and the other for 25mcg. The intention was for Patient H to use two patches totalling 37mcg. In his supplementary report, Dr Kertesz stated that he has not assumed that the patches were used as directed. However, for the purpose of calculating oversupply, we have assumed that Patient H was following Dr Mohammadi's tapering advice by using the 12mcg/hr and the 25mcg/hr patches together. We have counted these two scripts as one prescription covering a period of 15 days. 3. Item 41 in Schedule H suggests that Dr Mohammadi prescribed 50mcg/hr of fentanyl on 9 February 2015 as well as a script for 25mcg/hr on the same day. Before that date, Dr Mohammadi had been prescribing combinations of 25mcg/hr and 12mcg/hr presumably to give Patient H a dose of 37mcg/hr as he was tapering. The prescribing of 50mcg/hr (together with 25 mcg/hr) on 9 February 2015 is anomalous in that context. It is also odd that the dispensing pharmacy is named and there is a record of the consultation in Medicare's records, but no record of this consultation in Dr Mohammadi's patient notes or in his medical records. Dr Kertesz assumed that it had been prescribed, but acknowledged that he may not have checked the medical records and agreed that it had probably not been prescribed. We have based our calculation on the assumption that it was not prescribed. 4. Based on these findings, the total number of patches prescribed during the period from 10 June 2014 to 9 October 2015, is 225. We note that Dr Kertesz miscounted when concluding that there were 260 patches. At page 8 of his supplementary report, Dr Kertesz records 15 patches as being the number prescribed at the composite dose level. That number should be 40 patches. We have not included items 41 and 59 from the schedule as they are not supported by the medical records and may represent errors from pharmacy records. 5. Dr Kertesz assumed that items 59 and 60 had both been dispensed but agreed that those items could be a duplication even though they were dispensed by different pharmacies. Relying primarily on the medical records we have concluded that one of these is a duplicate. On that basis, the prescribing of fentanyl occurred between 28 January 2014 and 9 October 2015, a period of 618 days. The 225 patches of fentanyl would have been sufficient supply for 675 days. The last prescription was for 5 patches, so we have added 15 days. Over 21 months, the oversupply is 42 days. That is a significant amount of oversupply. That oversupply is not adequately explained in the patient's notes, Dr Mohammadi denies this particular but we find it to have been proved. Patient J 1. Dr Mohammadi prescribed fentanyl for Patient J from 18 July 2014 to 28 December 2015, a period of 528 days. In that time, he prescribed 190 patches (not 210 patches as Dr Kertesz stated). That amounts to 27 days oversupply if 15 days (not 30 days) is added to the end of the period for the 5 patches prescribed on 28 December 2015. That is not a significant quantity of oversupply for an 18 month period. This particular is not proven. Patient L 1. Dr Mohammadi prescribed fentanyl for Patient L from 12 July 2014 to 15 June 2015, a period of 338 days. The schedule of prescribing contains three scripts which do not appear in the medical record. We have not counted those scripts. An equivalent of 120 patches were therefore prescribed for an expected duration of 360 days. The oversupply for Patient L is 17 days based on adding 15 days for the 5 patches prescribed on 15 June 2015. That is not a significant amount of oversupply in a period of approximately 12 months. This particular is not proven. Findings 1. We find that complaint 1.2 is proven for Patients A, D and H. 1.3 Prescribing fentanyl to three patients for a non-therapeutic purpose – Patients B, C & N Background 1. This part of the complaint is that Dr Mohammadi prescribed fentanyl for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. The legal basis for this standard is also in cl 79 of the Poisons Regulation. Under that provision, it is an offence to issue a prescription for fentanyl patches ". . . for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances." 2. Under cl 78(1) of the Poisons Regulation, a practitioner must not prescribe fentanyl otherwise than for medical treatment. 78 Prescriptions may be issued for certain purposes only (1) A medical practitioner must not issue a prescription for a drug of addiction otherwise than for medical treatment (including in a clinical trial). 1. Dr Mohammadi denies this particular. 2. We understand that the therapeutic purpose of fentanyl is the management of chronic pain requiring opioid analgesia. Its purpose is not to treat addiction. In those circumstances, Dr Kertesz's evidence was that you have to be honest with the patient and refuse to prescribe the medication. 3. Dr Kertesz's opinion is that this conduct was significantly below the standard for Patients B, C and N and invites strong criticism for Patients C and N. Patient B 1. Patient B first consulted Dr Mohammadi on 16 February 2014 stating that he had been suffering from pain in his neck and left ankle. Dr Mohammadi examined his ankle and noted that it was 'not swollen', but was 'tender' with 'no deformity' and that movement was 'restricted'. At that first visit, Dr Mohammadi did not record that Patient B had been taking any other medication, and prescribed him 5 patches of 100 mcg/hr fentanyl. He said that he did ask him what medication he had been using and that he told him that none of the medications he had used were helping. 2. At the second visit on 1 March 2014, Patient B told Dr Mohammadi that he had seen his "pain team" and that his regular GP was away. Dr Mohammadi's notes record that he "told him regarding the narcotics and that I would not prescribe, asked him to not come again for such a script and continue with his own GP". Nevertheless, Dr Mohammadi prescribed a further 5 patches of 100 mcg/hr and advised that the quantity would be reduced to 75 mcg/hr next time. 3. When asked about this high dosage for a person who had not disclosed that he had been taking fentanyl previously, Dr Mohammadi said that he was in "serious, non-tolerable" pain. Dr Mohammadi acknowledged that it was a mistake to prescribe such a high dosage of fentanyl to a patient who had not been accustomed to that drug. Dr Mohammadi denied that he gives patients the dose they request. On the contrary, he says he assesses their level of pain himself. At the third consultation on 11 March 2014, Dr Mohammadi records, for the first time, that Patient B has been on fentanyl patches of 100 mcg/hr for 6 months. We accept Dr Mohammadi's evidence that that is the first time patient A had expressly disclosed that fact. 4. In the September 2017 interview with the PRU, Dr Mohammadi explained that he had prescribed the equivalent of 18 individual patches to Patient B on 20 April 2016 because "the patient had been travelling to Brisbane to visit relatives." He agreed that he had been "too soft" with this patient. 5. Dr Kertesz found that Dr Mohammadi had assumed this patient's management from another doctor. There were numerous discussions between Dr Mohammadi and Patient B about tapering the strength of fentanyl, however no changes were made. 6. Dr Kertesz's oral evidence was that if a doctor believes the patient to be drug dependent "you simply have to be extremely honest and say, 'I am not going to give you those medications.'" Dr Kertesz went on to observe that it takes a great deal of strength to do that but a doctor should say to the patient words to the effect of, "I'm pretty sure you're drug dependent. You're drug seeking. I would really like to help you but I'm not going to help you by continuing your habit." Dr Kertesz considered this conduct of continuing to prescribe fentanyl 100mcg/hr to Patient B as being significantly below the standard. 7. Dr Mohammadi's conduct in prescribing the highest dose of fentanyl (100 mcg/hr) to a patient who had not disclosed that he had ever used fentanyl before, is conduct significantly below the relevant standard. The risk to a patient, who was opioid naive of taking that quantity of fentanyl, is extreme. In fact, if this patient had actually not been taking fentanyl, he may well have died if he had suddenly started taking 100mcg/hr of fentanyl. Patient C 1. Patient C consulted Dr Mohammadi on 1 February 2017 reporting a work related back injury. At a visit on 3 March 2017, Dr Mohammadi prescribed fentanyl 100 mcg/hr patch for "pain". When asked why he prescribed the highest dose on the first occasion, Dr Mohammadi said that Patient C was suffering from chronic pain. In his words, he gave him the maximum dose because he had the "maximum pain". Dr Mohammadi says he believed that Patient C was already taking fentanyl, but admitted that his notes do not record that information. 2. On 9 June 2017, Patient C attended the surgery and saw another GP, Dr Harvey. Dr Harvey made the following observations: "walking, standing, sitting normally with nil distress, palpated lower back with nil tenderness". Dr Harvey refused to write a script for fentanyl, instead offering another analgesic which Patient C declined. Unlike Dr Harvey, Dr Mohammadi did not record the results of any observations or physical examinations of Patient C. He said that he did not need to conduct an examination every time he prescribed fentanyl. He then said that he does need to examine the patient and that in 1% of cases he might forget to record those findings. Dr Mohammadi's inconsistency and prevarication on this issue persuades us that he does not consistently conduct any kind of physical examination or assessment. 3. In an interview conducted by the PRU in September 2017, Dr Mohammadi said that Patient C had suffered a serious work related injury for which he required fentanyl patches. 4. Dr Kertesz said that on 3 March 2017 Dr Mohammadi assessed Patient C as being in pain from previous low back surgery. No other analgesics were considered in the treatment of the pain. Dr Kertesz considered this conduct to be significantly below the standard and invites strong criticism. We agree. Patient N 1. On 24 October 2013 at the first presentation, Dr Mohammadi discussed this patient's use of Oxycontin and prescribed Norspan transdermal 20mcg/hr patches for one week. The patient showed symptoms of withdrawal. Dr Mohammadi slowly reduced the dosage of Durogesic from January 2013 until November 2015. A week later Dr Mohammadi refused to prescribe Durogesic saying he had successfully withdrawn and needed to be strong. Dr Kertesz's conclusion was that: "Dr Mohammadi's conduct in assuming care for (patient N) on S8 medications with view to rotating medications and stabilising the patient with view to withdrawal from Durogesic given the shortfall in medication used and medication prescribed was below the standard reasonably expected of a practitioner of his level of training or experience. This departure was significantly below and invites strong criticism." 1. We agree with Dr Kertesz. Dr Mohammadi prescribed Patient N the Schedule 8 drug of addiction fentanyl for a purpose that did not accord with recognised therapeutic standard of what is appropriate and contrary to cl 79 of the Poisons Regulation. 1.4 Not referring 13 patients for review and advice - Patients B, C, D, E, F, G, H, I , J, K, L, M & N Background 1. This part of the complaint is that, for these 13 patients, Dr Mohammadi failed to make appropriate and timely referrals for specialist review and advice. Despite formally denying this particular in the Reply, Dr Mohammadi admitted the factual allegations. He also admitted that it would have been appropriate for him to do so. The only issue is whether this conduct falls significantly below the relevant standard. 2. To obtain an Authority to Prescribe a Schedule 8 drug for pain management, a practitioner is asked whether he or she has "a recent report from a palliative medicine or pain medicine specialist." That question suggests that it is advisable to refer patients to such a specialist before prescribing these kinds of drugs. Depending on the circumstances, other appropriate referrals would have been to addiction specialists and drug and alcohol services. 3. Apart from Patient C, Dr Mohammadi did not refer any of these patients for a specialist pain management assessment or advice. For Patient H, there is a reference to an appointment with a pain management team at Westmead Hospital but no evidence that a letter of referral was ever issued. 4. Dr Kertesz's opinion was that the conduct for each of these patients, apart from Patient C, was significantly below the standard and invites strong criticism for each patient. Patient B 1. There is no record of any referral in the medical records for Patient B and Dr Mohammadi did not refer him to any pain specialist. Dr Mohammadi agreed that it was appropriate for Patient B to be referred to a pain specialist. In Dr Kertesz's view, Dr Mohammadi's failure to refer Patient B to any specialist pain management assessment and advice makes his conduct in the treatment of that patient significantly below the standard and invites strong criticism. Patient C 1. In Dr Kertesz's view, because Patient C was on workers compensation payments, Dr Mohammadi referred him to a physiotherapy/rehabilitation provider on the fifth consultation and to a pain management specialist on the seventh consultation. Dr Kertesz considered Dr Mohammadi's conduct in referring Patient C for review and advice was conduct which complied with the relevant standard. We agree. This particular is not proven. Patient D 1. Patient D consulted Dr Mohammadi approximately 50 times over about 22 months. Dr Mohammadi could not recall if he had referred Patient D to a pain specialist. There is no record of him doing so. We find that Dr Mohammadi did not refer Patient D to any specialist pain physician or other practitioner. Dr Mohammadi acknowledged that it would have been appropriate to do so. In Dr Kertesz's opinion that conduct was significantly below the relevant standard and invites strong criticism. We agree. Patient E 1. Dr Mohammadi treated Patient E in approximately 37 consultations over about 17 months. There is no record of any referral in the medical records for Patient E. Dr Mohammadi agreed he should have referred Patient E for a specialist review. 2. We find that Dr Mohammadi did not refer Patient E to any specialist medical practitioner such as a specialist pain physician. In accordance with Dr Kertesz's view, that conduct was significantly below the relevant standard and invites strong criticism. Patient F 1. Patient F consulted Dr Mohammadi about 23 times over a period of about 21 months. There is no record of any referral in the medical records for Patient F. Dr Mohammadi did not refer her to any form of specialist medical practitioner in respect of her pain. Dr Mohammadi agreed that he should have referred Patient F for a specialist review. In Dr Kertesz's view, that conduct was significantly below the relevant standard and invites strong criticism. We agree. Patient G 1. There is no record of any referral in the medical records for Patient G. Dr Mohammadi did not refer Patient G to a specialist review in respect to his pain. He agreed that he should have referred Patient G for a specialist review. Dr Kertesz's view was that Dr Mohammadi's failure to do so over a period of 8 months was conduct falling significantly below the relevant standard. We agree. Patient H 1. For Patient H, there is a reference to an appointment with a pain management team at Westmead Hospital but no evidence that a letter of referral was ever issued. Dr Mohammadi failed to make appropriate and timely referrals for specialist review and advice and failed to properly refer Patient H to any specialist pain physician prior to treatment. We agree with Dr Kertesz's view that this conduct is significantly below the relevant standard. Patient I 1. There is no record of any referral in the medical records for Patient I. Dr Mohammadi cannot recall whether he referred Patient I to a pain specialist. He agreed that if he had not referred Patient I to a pain specialist that this was inappropriate. 2. For Patient I, there was no referral to a specialist pain physician. Again, we agree with Dr Kertesz's view that this conduct is significantly below the relevant standard. Patient J 1. Patient J consulted Dr Mohammadi approximately 40 times over 19 months. There is no record of any referral to a pain specialist in the medical records. Dr Mohammadi agreed that if he had not referred Patient J to a pain specialist, that this was inappropriate. In accordance with Dr Kertesz's view, we find that Dr Mohammadi did not refer Patient J to a pain physician and again, that that was significantly below the relevant standard. Patient K 1. Patient K was treated over about 10 months at 17 consultations. There is no record of any referral for specialist review and advice in the medical records for Patient K. Dr Mohammadi agreed that if he did not refer Patient K, that would be inappropriate. 2. Failure to refer Patient K to a specialist pain physician was significantly below the relevant standard. Patient L 1. Patient L consulted Dr Mohammadi for about 9 months with approximately 25 consultations during that time. There is no record of any referral in the medical records for Patient L. Dr Mohammadi agreed that if he had made such a referral, it would be in the notes. Dr Mohammadi also agreed that it would have been appropriate for Patient L to have been referred to a pain specialist. 2. We find that Dr Mohammadi did not refer Patient L for specialist review and advice and in accordance with Dr Kertesz's opinion, that failure was significantly below the relevant standard. Patient M 1. Patient M consulted Dr Mohammadi 34 times over about 16 months. There is no record of any referral in the medical records for Patient M. 2. We find that Dr Mohammadi did not refer Patient L for specialist review and advice and in accordance with Dr Kertesz's opinion, that failure was significantly below the relevant standard. Patient N 1. Patient N consulted Dr Mohammadi 55 times in 35 months. There is no record of any referral in the medical records for Patient N. Dr Mohammadi agreed that if it was not recorded in his notes, he did not make such a referral. It would have been appropriate for him to do so. 2. We find that Dr Mohammadi did not refer Patient L for specialist review and advice and in accordance with Dr Kertesz's opinion, that failure was significantly below the relevant standard. Conclusion 1. Apart from Patient C, we find this particular to have been proved. 1.5 Not responding appropriately when six patients exhibited drug seeking behaviour - Patients G, H, I, J, M & N 1. This particular is that Dr Mohammadi failed to respond appropriately when these six patients exhibited drug seeking behaviour. Dr Mohammadi denies these particulars. Patient G 1. There is no reference in the clinical notes to Patient G exhibiting any drug seeking behaviours. Dr Mohammadi noted 'drug dependency' on 18 October 2014. This particular is not proven in relation to Patient G. Patient H 1. Dr Mohammadi acknowledged that Patient H made an appointment before the fentanyl patches should have run out, asking for another prescription. Dr Mohammadi gave evidence that in 2014 when treating Patient H he honestly did not understand that Patient H was exhibiting drug seeking behaviours. He now understands that to be the case. 2. On 22 March 2014, Dr Mohammadi counselled Patient H against coming early for a script. Initially Dr Mohammadi denied that he knew coming early for scripts and making excuses was drug seeking behaviour. When questioned further, he said he was not sure it was drug seeking behaviour at the time. Finally he said he did not "strongly think" it was drug seeking but conceded that he did not respond appropriately to the drug seeking behaviour. We are satisfied that Dr Mohammadi knew at the time that Patient H was drug seeking. Otherwise he would not have counselled her against coming early for a script. His denial is simply not credible. Dr Mohammadi agreed he did not respond appropriately to Patient H's drug seeking behavior. 3. Dr Kertesz's view was that during the prescribing period 20 February 2014 to 13 July 2014, there were six occasions when Patient H sought to obtain a script early. On half these occasions, Dr Mohammadi told Patient H that he should not attend early but he always wrote the script. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient I 1. During the prescribing period of 17 July 2014 to 28 July 2016, there were four occasions on which Patient I exhibited drug seeking behaviour by attending early for a script. Dr Mohammadi only provided the script early on one occasion. Dr Kertesz regarded this conduct as being significantly below the relevant standard. We agree. Patient J 1. During the prescribing period of 18 July 2014 to 15 February 2016 there were two documented drug seeking attendances by Patient J. On one of those occasions, Dr Mohammadi provided the script earlier than he should have. Dr Kertesz regarded that behaviour as significantly below the relevant standard. We agree. Patient K 1. During the prescribing period of 12 February 2014 to 13 December 2014, there were two documented drug seeking attendances by Patient K. Despite telling Patient K that it was unacceptable to come early for a script, Dr Mohammadi wrote the script on both occasions. In oral evidence, Dr Mohammadi said that he suspected Patient K was drug seeking but was "not aware enough" of Patient K's drug seeking behaviour. He said he did not form that view from the beginning but that it became apparent later. 2. Dr Kertesz regarded this behaviour as significantly below the relevant standard. We agree. Patient M 1. Dr Mohammadi was aware in 2014 that if a patient asks for a specific drug such as fentanyl, that may be a sign of drug seeking behaviour. He said he prescribed Patient M with fentanyl because he thought it was safer than Oxycontin. When questioned about that belief, Dr Mohammadi said he thought that if he prescribed patches, the patient could not inject the medication all at once. Dr Mohammadi conceded that he did not have any idea how the patches worked or that a patient could inject the medication obtained from the patch. 2. During the prescribing period of 15 December 2014 to 27 June 2015 there were four documented examples of drug seeking behaviour by Patient M. While counselling Patient M against coming early for a script, Dr Mohammadi provided the script on each occasion. For example, on 18 May 2014, Patient M came two days early for her script saying that she had to attend a funeral. Dr Mohammadi wrote the script but accepts that this could have been another example of drug seeking behaviour. 3. Dr Kertesz regarded this behaviour as significantly below the relevant standard. We agree. Patient N 1. During the period from 24 October 2013 to 7 September 2016, there were five documented examples of drug seeking behaviour by Patient N. On one of those occasions Dr Mohammadi recorded "robbery". On another occasion Patient N attend three days early requesting a script because of overseas travel. Dr Mohammadi acknowledges that he should have checked this patient's travel details. The patient attended early again on 7 August 2014 saying he had lost the patches. On four of the five occasions, Dr Mohammadi wrote the scripts early. Dr Mohammadi says that at that stage he trusted Patient N. 2. At the 30 December 2013 consultation Dr Mohammadi recorded the reason for the visit as "drug addiction". On 10 February 2014, Patient N advised Dr Mohammadi that he was not able to decrease the dose. A month later he reported using patches every second day, rather than one every three days. While Dr Mohammadi said he was concerned, he still prescribed more fentanyl. He says he realises now that it is a big concern if a patient is using patches at that rate. 3. Later Dr Mohammadi says he asked Patient N whether he was giving the patches to anyone else and accepted his denial. On 16 September 2014 when Patient N asked for tramadol, another opioid pain medication. Dr Mohammadi refused to write that script because he was already taking fentanyl. At that point, Dr Mohammadi knew without a doubt that Patient N was engaged in drug seeking behaviour. On 16 January 2015, Patient N reported that he had taken two tramadol that morning. Dr Mohammadi said he was concerned that he was seeing another doctor to get scripts for tramadol but did nothing about it. 4. Dr Kertesz regarded this behaviour as significantly below the relevant standard. We agree. Conclusion 1. Apart from Patient G, we find this particular proven. 1.6 Failure to obtain an authority to prescribe fentanyl when Dr Mohammadi knew or should have known that 11 patients were drug dependent - Patients D, E, F, G, H, I, J, K, L, M & N 1. This particular is that Dr Mohammadi inappropriately prescribed fentanyl when he "had formed the opinion or ought reasonably to have formed the opinion that the patient was a drug dependent person within the meaning of s 27 of the Poisons Act and without the authority to prescribe under s 29 of the Poisons Act. Dr Mohammadi denies this particular. 2. Fentanyl is a "drug of addiction" under Schedule 8 of the Poisons List, proclaimed under the Poisons Act. Practitioners need an authority from the Ministry of Health before prescribing fentanyl to a "drug dependent person". A "drug dependent person" is defined in s 27 to mean "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." Consequently, a medical practitioner must not prescribe fentanyl to a person who, in his or her opinion, comes within the definition of a drug dependent person without obtaining the proper authority. 3. Dr Mohammadi denies this particular. He says that for many patients, he knew he was prescribing fentanyl for drug addiction, not for pain management. His idea was to taper down the medication to wean them off opioids. He says he did not know the strength of fentanyl, but knew that tapering worked. He now acknowledges that he had no experience in treating drug addicted patients and says he is sorry he did not refer these patients to an addiction specialist. Patient D, E, F, G, H, I, J, K, L, M & N 1. Dr Mohammadi agreed that he had formed the view that Patient D was a drug dependent person. He did not seek an authority to prescribe drugs of addiction to Patient D and agreed it would have been appropriate for him to have done so. 2. Dr Mohammadi formed the view that Patient E was drug dependent at the very first consultation. He did not seek an authority to prescribe fentanyl to Patient E. Dr Mohammadi continued to prescribe fentanyl to Patient E with the intention of reducing the dose over time. 3. By 24 November 2013 the Respondent had formed the view that Patient F was a drug dependent person. He did not seek an authority to prescribe to Patient F. He said he had no idea he needed an authority. 4. By 18 October 2014 Dr Mohammadi formed the view that Patient G was a drug dependent person. He did not seek an authority to prescribe to Patient G. Patient G was initially taking MS Contin, oral morphine. Dr Mohammadi changed Patient G to fentanyl because he thought it was safer than MS Contin which could be injected. 5. Dr Mohammadi formed the view that Patient H was a drug dependent person. He accepts that Patient H was engaged in drug seeking behavior, but he did not realise this at the time. Dr Mohammadi continued to prescribe fentanyl to Patient H even though he was aware Patient H was on a methadone program. Dr Mohammadi agreed that he did not respond appropriately to Patient H's drug seeking behavior. 6. On 29 July 2014 Dr Mohammadi was concerned that Patient I was drug dependent. By 20 October 2014 Dr Mohammadi was aware that Patient I was drug dependent. He did not seek an authority to prescribe fentanyl to Patient I. Dr Mohammadi agrees that his prescribing to Patient I was inappropriate. 7. Dr Mohammadi was aware from 15 February 2014 that Patient J had been identified as a prescription shopper and was exhibiting drug seeking behavior. He now accepts that Patient J was drug dependent. Dr Mohammadi also agrees that prior to his last consultation with Patient J, he formed the view that Patient J was drug dependent. Dr Mohammadi did not seek an authority to prescribe to Patient J. 8. Dr Mohammadi admitted in oral evidence that he knew Patient K was drug dependent when he was treating him. Dr Mohammadi did not seek an authority to prescribe to Patient K. 9. Dr Mohammadi agrees that Patient L was a drug dependent person. He did not seek an authority to prescribe to Patient L. Again, he said that he was not aware of the need for an authority. 10. Dr Mohammadi formed the view that Patient N was a drug dependent person but continued to prescribe fentanyl. He was also aware that Patient N was exhibiting drug seeking behaviour. Dr Mohammadi did not seek an authority to prescribe to Patient N. Conclusion 1. Dr Mohammadi said that he knew most of the patients were drug dependent but he thought by tapering the dose of fentanyl he was getting rid of their drug dependence. He thought he was helping them. He says he did not request an authority because he did not know he needed to apply for one. We accept that Dr Mohammadi did not know he needed to obtain an authority. We find this particular to be proven. 1.7 Failing to obtain an authority to prescribe Ritalin to a minor 1. This particular is that Dr Mohammadi failed to obtain an authority under s 29 of the Poisons Act to prescribe Patient O, a minor, the Type A Schedule 8 drug of addiction, methylphenidate (Ritalin) on the date and in the quantities shown in Schedule O. Dr Mohammadi admits this particular. 2. Failure to obtain an authority from the PRU for urgent or temporary prescribing of Ritalin LA to Patient O was a contravention of s 29 of the Poisons Act. We agree with Dr Kertesz that this conduct was significantly below the relevant standard. Complaint 2 – inadequate records for Patient O The complaint 1. This complaint is that Dr Kertesz is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Under that provision, contravention of a provision of either the National Law or Regulations made under the National Law is grounds for finding unsatisfactory professional conduct. The Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) was a regulation for the purpose of s 139B(1)(b) of the National Law at the relevant time. Part 4, clause 7(1) of that Regulation provides that a 'medical practitioner 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'. Clause 7(2) provides that a contravention of cl 7(1) is not an offence, but may constitute behaviour for which health, conduct or performance action may be taken. 2. Dr Mohammadi admits this particular. 3. Dr Kertesz's opinion was that Dr Mohammadi's notes are "terse but concise and sequential". The standard of notes relating to the prescribing of Ritalin LA is "very poor in content". Dr Kertesz expressed the overall view that the quality of Dr Mohammadi's note keeping for the consultations involving Ritalin was below the relevant standard, but not significantly below the standard. When questioned about that opinion, Dr Kertesz said he stood by it because the notes for two other consultations not involving Ritalin, were "comprehensive and good". 4. A contravention by Dr Mohammadi of the Health Practitioner Regulation (New South Wales) Regulation is deemed by s 139B(1)(b) of the National Law to be unsatisfactory professional conduct. Such a contravention may occur in relation to only one entry. Dr Mohammadi admits this particular and we find it to have been proved. Complaint 3 – professional misconduct 1. The HCCC submits that, both individually and cumulatively, the particulars of Complaints One and Two demonstrate that Dr Mohammadi has engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of his registration. 2. Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of Dr Mohammadi's registration. Except for the record keeping particulars, the determination of whether conduct amounts to professional misconduct requires, as its starting point, an objective assessment of Dr Mohammadi's conduct against the standard of conduct reasonably expected of an equivalent practitioner. We have found that Dr Mohammadi has extensive experience as a general practitioner, in both group and solo practices. While he has had access to training, he has not availed himself of that opportunity in relation to prescribing Schedule 8 drugs. 3. The gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638. 4. While comparisons are not always instructive, we set out below the attitude of decision makers to conduct similar to that engaged in by Dr Mohammadi. 5. In HCCC v Nemeth [2012] NSWMT 4 at [51], the Medical Tribunal referred to the Court of Appeal decision in Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep): "[A] medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: 'In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.' …" 1. The Tribunal also referred to this passage from Spicer v NSW Medical Council in Health Care Complaints Commission v Lo [2016] NSWCATOD 119 at [154]. The Tribunal agreed that prescribing medication contrary to the law can amount to conduct warranting the removal of a practitioner from the Register. 2. In Health Care Complaints Commission v Suri [2016] NSWCATOD 54 at [88]-[89], the Tribunal was highly critical of a practitioner who had flagrantly disregarded the regulatory scheme applying to drugs of addiction. Similarly in Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 at [28-[29], the Tribunal held that: "It is plain that over-prescribing medications contrary to law by a medical practitioner can amount to conduct warranting the removal of the practitioner's name from the Register of Practitioners. Dr Kwan's conduct was reckless and showed a blatant disregard of the law." 1. The HCCC submits that the following conduct of Dr Mohammadi's justifies cancellation or suspension: 1. prescribing Schedule 8 drugs to patients without checking whether they were drug dependent; 2. prescribing Schedule 8 drugs to patients in inappropriate dosages; 3. prescribing Schedule 8 drugs to patients for a purpose that did not accord with recognised therapeutic standard; 4. failing to make appropriate and timely referrals for specialist review and advice; 5. failing to respond when patients exhibited drug seeking behaviour; 6. continuing to prescribe Schedule 8 drugs when the practitioner had formed the opinion or ought reasonably to have formed the opinion that the patient was a drug dependent person without the authority to prescribe under s 29 of the Poisons Act; and 7. failing to obtain an authority under s 29 of the Poisons Act to prescribe Patient O, a minor, the type A Schedule 8 drug of addiction. 1. Dr Mohammadi submits that it is not uncommon for practitioners to be insufficiently aware of several important aspects of practice including behaviour that (at least potentially) might be drug-seeking behaviour; the regulatory regime concerning when an authority to prescribe is required, and further, the method by which to obtain an authority. It was submitted that Dr Mohammadi was ignorant of many of his obligations, but not wilfully reckless. He acknowledged that he did not recognise drug seeking behaviour, particularly in Patient H. That was said to be to his credit. Dr Mohammadi's evidence was said to be characterised by his very frank and candid acceptance of error. 2. We accept that Dr Mohammadi was ignorant of his obligations to obtain an authority to prescribe fentanyl to patients who he knew or should have known were drug dependent. For six patients he contacted the Prescription Shopping Information Service. However, for Patients F and J he continued to prescribe fentanyl without an authority even though they were identified as being prescription shoppers. 3. As to the submission that he was not "wilfully reckless", we accept that Dr Mohammadi did not intend to do harm. He thought he was helping these patients by continuing them on fentanyl or by switching to that drug because he wrongly thought it was safer than oral medication. For that reason he prescribed fentanyl to some patients who were not currently taking fentanyl. While not intending to do harm, he was reckless in the doses and quantities he supplied for those patients we have identified. 4. While admitting that he did not understand how strong fentanyl was or that he needed to obtain an authority to prescribe it, he said he was trying to help patients reduce their intake so they would not suffer withdrawal. Despite that stated intention, for more than two years after Dr Mohammadi first prescribed fentanyl to Patient B, he was still prescribing 100mcg/hr patches. Dr Mohammadi says that was because "the patient was not suitable to do that because his level of pain means that he needed to continue with 100 mcg/hr patches". Dr Kertesz noted that during the entire period, Dr Mohammadi had broached the subject of decreasing the strength of the patches but had been met with considerable resistance. 5. Dr Mohammadi agrees that he was treating these patients for drug addiction, not for pain. For those patients on workers compensation payment, he prescribed fentanyl because they were not responding to non-narcotic medication. 6. The fact remains that Dr Mohammadi prescribed a highly potent and addictive drug indicated in the management of chronic pain. Despite his denials and prevarications, we are satisfied that he knew several of the patients were drug seeking and/or drug dependent. He wrongly thought that he was treating their addiction. He oversupplied fentanyl to Patients A, D and H. The potential for abuse and harm, including death, was high. 7. We find that that Dr Mohammadi prescribed fentanyl with almost no understanding of the potency or risks associated with this drug. He treated several patients over a number of years. This is unsatisfactory professional conduct of the most serious kind and warrants a finding of professional misconduct. Costs 1. The HCCC seeks an order that Dr Mohammadi pay its costs. Dr Mohammadi did not wish to be heard on costs. 2. The Tribunal has power to order that one party should pay another party's costs: National Law, Sch 5D, cl 13. The general rule is that the unsuccessful party should be ordered to pay the successful party's costs. In legal terms, that principle is expressed as costs following the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Meagher JA, Emmett JA and Beech-Jones J at [42]. 3. The presumption that a successful party is entitled to costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 at [40]. The HCCC was largely successful in these proceedings and there was no disentitling conduct. Orders 1. The Tribunal finds that Dr Mohammadi engaged in unsatisfactory professional conduct and professional misconduct. 2. Dr Mohammadi is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 3. By 19 November 2021, the parties are to file and serve any material relied on for the Stage 2 proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2021