Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dobie [2021] NSWCATOD 195 Hearing dates: 2 - 4 August 2021 Date of orders: 02 December 2021 Decision date: 02 December 2021 Jurisdiction: Occupational Division Before: The Hon Sheahan ADCJ, Principal Member Dr S Cowap, Senior Member Dr H Haikal-Mukhtar, Senior Member R Kusuma, General Member Decision: The Tribunal finds Dr Peter Richard Dobie guilty of professional misconduct, and orders that these proceedings be listed for directions, including the fixing of a date for a stage two hearing, the date and time of which is to be notified by the Registrar. Catchwords: HEALTH — Professional registration and discipline — complaints by four patients — admissions – medical practitioner found guilty of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Records and Information Privacy Act 2002 (NSW) Medical Practice Regulation 2008 (NSW) (repealed) Poisons and Therapeutic Goods Act 1966 (NSW) Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Lucire [2011] NSWCA 99 King v Health Care Complaints Commission [2011] NSWCA 353 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Peter Richard Dobie (Respondent) Representation: Counsel: P Aitken (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2021/00035880 Publication restriction: A non-publication order with respect to the names of the patients set out in the schedule to the Complaint was made on 26 February 2021. REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (HCCC or the Commission) seeks orders against Dr Peter Richard Dobie (Dr Dobie or the Practitioner), pursuant to various provisions of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. The parties agreed, and the Tribunal accepts, that the proceedings will be dealt with in two stages, and these Reasons dealt with only the first stage. 3. In that first stage, the Practitioner's relevant conduct the subject of the HCCC complaints will be assessed and "properly characterised": see King v Health Care Complaints Commission [2011] NSWCA 353; and Health Care Complaints Commission v Lucire [2011] NSWCA 99. 4. Once these Reasons are published, the proceedings will be adjourned to give the parties time to prepare whatever additional evidence and submissions they wish to rely upon at the second stage Hearing, in which this Tribunal will determine what, if any, "protective" orders should be made. 5. The object of proceedings such as these is protective rather than punitive – i.e., their purpose is the protection of the whole community, not only relevant patients of a particular practitioner, and the maintenance of public confidence in the medical profession, rather than punishment of practitioners for unsatisfactory professional conduct, or professional misconduct. 6. Suspension or cancellation of a practitioner's registration may be ordered if the Tribunal considers his/her "unsatisfactory professional conduct" is sufficiently serious to be characterised as "professional misconduct": see ss 139B and 139E of the National Law; Health Care Complaints Commission v Do [2014] NSWCA 307; and Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen), especially per Basten JA. 7. "Unsatisfactory professional conduct" connotes a practitioner's engagement in (1) conduct demonstrating knowledge, skill, judgment and care significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (2) a contravention of a provision of the National Law, or regulations under that Law or under the NSW regulations; and/or (3) improper or unethical conduct relating to the practice of the practitioner's profession (National Law, s 139B(1)(l). 8. Kirby P (as His Honour was at the time) considered that "professional misconduct" required some degree of "moral delinquency" (a term he said he borrowed from Hutley J). Kirby P did not accept that mere negligence or incompetence amounted to "misconduct", and he explained, in Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 200, that misconduct comprised: "…a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner." 1. In its written submissions in the present case (par 41), the HCCC noted the "absence of any comprehensive exploration as to a precise boundary between unsatisfactory professional conduct and professional misconduct", and directed the Tribunal to remarks of Basten JA in Chen. 2. Basten JA surveyed the development of relevant terminology over time, and opined (Chen, 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." 1. The HCCC submits (par 45) that particulars of Complaints One to Four in Dr Dobie's case, when considered either by themselves or cumulatively, clearly establish that the Respondent "has engaged in sufficiently serious conduct to justify the suspension or cancellation of [his] registration". The Respondent's Case Dr Dobie himself 1. Dr Dobie was born on 29 October 1956, and studied at the University of Tasmania, graduating in 1980. 2. He was first registered in NSW on 6 May 1981, and commenced practice as a General Practitioner (GP) in 1983 in Sydney. He worked in rural NSW from 1998 to 2009, and since 2009, in various suburbs of Sydney (Ex R1, tab 4). 3. Some of the patients subject of the present HCCC complaints were based out of Sydney when they consulted him during his years in practice in Sydney. 4. His registration has been suspended twice over the years (October 1983 to February 1984, and January 1993 to January 1994) for non-payment of the requisite fees, and, since 20 November 2020, Dr Dobie has been practising subject to supervision and conditions imposed by the Medical Council of New South Wales. These conditions were amended on 22 or 25 January 2021 (Ex A1, tab 2). 5. The Complaint before the Tribunal, as amended just prior to the commencement of the three day stage one Hearing on 2 August 2021, concerns four separate patients, known and referred to as Patients A, B, C and D. The Complaint comprises individual complaints numbered One to Four, alleging unsatisfactory professional conduct, and a combined regulatory complaint (numbered Five) in respect of "allegedly inadequate practitioner's notes" in all four specific cases, generally from 2014 to now. 6. Dr Dobie's Reply to that amended Complaint includes numerous admissions of unsatisfactory professional conduct, but no admission of professional misconduct (such as is alleged in complaint Six), which is based on the cumulative effect of adverse findings by the Tribunal on complaints One to Five. He admits complaint Five in full. 7. Counsel for the HCCC indicated, in opening, that the HCCC would be seeking at stage two an order for cancellation of Dr Dobie's registration, and a ban on his re-applying within two years of such an order. Such an outcome would require the HCCC to establish that Dr Dobie's admitted or proven unsatisfactory professional conduct amounted to professional misconduct but, even then, cancellation or suspension would not automatically follow. The Patients 1. Patients A, B and C (complaints One to Three) all consulted Dr Dobie after he had become known for his particular interest in the treatment of Lyme disease (or Borreliosis), generally understood as a tick-borne bacterial illness. 2. He had long been interested in patients who displayed symptoms of fatigue over a long period, and who, from his perspective, had been inadequately served by "conventional" medical practice (Respondent submissions, par 6). He concluded (par 7) that Lyme disease "provided an explanation for their ongoing non-specific symptoms". 3. His evidence variously estimates the number of patients he treated for Lyme disease in the range of 200-400, of whom he estimated 30%-50% were treated for "persistent or chronic borreliosis" (HCCC submissions, par 63). 4. The relevant time frames for the three "Lyme" patients are: for Patient A, 24 November 2014 to 22 February 2017 (complaint made 30 October 2017); for Patient B, 6 September 2017 to 14 December 2017 (complaint 12 December 2017); and for Patient C, 5 August 2013 to 6 August 2015 (complaint lodged with Patient B's, on 12 December 2017). 5. These relevant time frames occurred, it should be remembered, when Dr Dobie had been practising medicine for at least 25 years. 6. Patient D (complaint Four) sought his assistance in respect of insomnia, weight gain, and neck and back pain control, but not Lyme disease, generally between 2010 and 2017, and her complaint (3 November 2017) focuses heavily on his allegedly inappropriate prescription practices. Lyme disease 1. Of Dr Dobie's interest and involvement with Lyme disease, from 2014 to May 2018, he states (Ex R1, tab 1, pars 6-8): "6. At the time that I treated the patients named in the complaint I had a particular interest in Lyme disease. I was a member of the International Lyme and Associated Diseases Society (ILADS). ILADS is an international interdisciplinary group of physicians and re-searchers dedicated to the diagnosis and treatment of tick-borne diseases. Members include infectious disease specialists, urologists, rheumatologists, internists, general practitioners, paediatricians, immunologists, and psychiatrists. 7. ILADS has a strong focus on the diagnosis and treatment of patients with chronic Lyme disease. I formed the opinion that some of the patients I was seeing in Australia with chronic illness might be suffering from Lyme disease/borreliosis and may benefit from the treatment approaches advocated by ILADS doctors. 8. In 2014, I undertook a preceptorship with Dr Joseph Jemsek, an infectious disease specialist with a focus on Lyme disease, in Washington DC. Dr Jemsek has an international reputation and has treated patients from many countries. He has a large clinic with approximately 30 staff, including nurses, nurse practitioners, and physician assistants." Prescribing 1. On his knowledge of NSW legislative requirements for the prescription of Schedule 8 drugs, relevant in particular to the case of patient D, and her use of Oxycodone Hydrochloride 2015-2017, Dr Dobie concedes (par 87): "87. I was not aware of the NSW legislation (Poisons and Therapeutic Goods Act) requiring approval of Schedule 8 drugs when prescribed for more than two months. I am now familiar with that legislation, and compliant with it." 1. He now says of patient D (pars 66-69): "66. Patient D consulted me as her general practitioner from 2010-2017 in a number of different locations. 67. I treated Patient D for insomnia, neck and back pain and weight gain. 68. Patient D was a difficult patient and on reflection I acknowledge that she exhibited drug-seeking behaviour. 69. I accept that I made many errors of judgement in my prescribing for this patient. I consider I was manipulated by the patient and did not recognise her drug-seeking behaviour." Record Keeping 1. Regarding the complaints concerning his medical records, he says (pars 88-89): "88. I accept that my record keeping has, for the patient subject of the complaint to be sub-standard. 89. Since these complaints I have taken the time to re-familiarise myself with the regulations that govern recordkeeping for doctors and I respect those regulations and the rationale for them." The Evidence 1. There was no objection raised to the tendering by both parties of voluminous documentary evidence. 2. The HCCC tendered two volumes of material (Ex A1), which included statements from the four patients, other documentary evidence, and significant expert evidence, provided by Dr Jeannie Ellis (GP – tabs 8 to 10), and by Professor Peter Collignon (Infectious Diseases Specialist – tabs 13 to 17). Dr Dobie did not dispute the expert evidence. 3. Also included were the transcript and decision of the s 150 proceedings held on 13 November 2020 (tabs 38-39). The Panel conducting the s 150 hearing referred (tab 39, p 2) to the "considerable number of complaints [made to the Medical Council between 1997 and 2020] in relation to Dr Dobie's clinical care, communication and treatment", but concluded that suspension was not necessary. The Complaints and Dr Dobie's Reply 1. For fairness and completeness, we will now set out in this section of these Reasons all the details contained in both the Amended Complaint (Ex A1, tab 1) and the Amended Reply (Ex R1, tab 3, pp 39-58, printed here in bold). 2. Complaint One concerns Patient A, a female, born 1991: "COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT ONE On 24 November 2014 the practitioner first saw Patient A with Patient A's aunt at his rooms in Lilyfield, NSW. Patient A complained to the practitioner of multiple symptoms such as insomnia, brain fog, sinus congestion, and told the practitioner that she suspected Lyme disease. The practitioner saw Patient A thereafter using Skype until their final consultation on 22 February 2017. PARTICULARS OF COMPLAINT ONE 1. On 24 November 2014 the practitioner first saw Patient A and failed to properly assess, investigate and advise Patient A in that he: a. did not obtain Patient A's past medical records; [The Respondent admits this particular.] b. did not perform a thorough examination of Patient A; [The Respondent denies this particular.] c. unnecessarily ordered thyroid function, cortisol and Lyme disease testing; [The Respondent admits this particular.] d. did not explain to Patient A that she did not have relevant risk factors for Lyme disease or related diagnoses. [The Respondent admits this particular.] 2. The practitioner failed to make it a requirement of his treatment of and prescribing to Patient A that she attend his rooms in person at least once and to undertake any physical examination of Patient A after 24 November 2014 and up to 22 February 2017. [The Respondent admits this particular.] 3. On about 27 January 2015 the practitioner inappropriately diagnosed Patient A with "possible Borreliosis", or "possible Lyme disease" in circumstances where: a. the practitioner had not first obtained a detailed relevant history from Patient A and her treating practitioners relevant to his diagnoses; [The Respondent admits that he did not record all relevant details relevant to his diagnoses in his notes.] [The Respondent admits he did not obtain a history from Patient A's treating practitioners.] b. Patient A had not travelled to areas where Lyme disease is present; [The Respondent does not admit this particular.] c. Patient A did not report any subjective features supporting such diagnoses including any tick bites; [The Respondent admits this particular.] d. the practitioner had not conducted any relevant physical and systems examinations of Patient A such as vital sign readings, BMI, central venous system, respiratory, gastrointestinal, central nervous system and MSK system examinations; [The Respondent admits he did not review or consider BMI, accepts that none of the examinations listed have been recorded, but otherwise does not admit the particular, and says that he conducted the examinations referred to in his statement.] e. Patient A had no objective risk factors for the development of such pathology; [The Respondent admits this particular.] f. the practitioner had not properly considered, investigated, and excluded other more likely diagnoses; [The Respondent admits this particular.] g. the practitioner based his diagnoses on the incorrect view that there was strong evidence that Borreliosis could be acquired from a tick bite in Australia; [The Respondent admits that that was his view, admits now that there is no peer‐reviewed study which confirms Borreliosis has been acquired by tick bite in Australia, and states that he no longer treats Lyme Disease.] h. the test results received by the practitioner did not support the diagnoses; [The Respondent admits this particular.] i. there was inadequate evidence that Patient A had a bacterial infection of any type. [The Respondent admits this particular.] 4. From at least 1 May 2015 the practitioner inappropriately diagnosed Patient A with Lyme disease, "persistent borreliosis", and "probable Bartonella and Babesiois" in circumstances where: a. particulars (3.a) to (3.i) are repeated; b. the incidence of Babesiois in Australia was rare and as such required further investigation and evidence before the practitioner made such a diagnosis; c. the practitioner based his diagnosis on the incorrect view that it was common for Bartonella and Babesiois to be present as co-infections in people with Lyme disease. [The Respondent admits sub-particulars a-c.] 5. From about 27 January 2015, other than a Australian Rickettsial reference lab test result, the practitioner inappropriately relied on test results to arrive at his diagnoses in particulars (3) and (4) in that the tests he ordered were from pathology laboratories not accredited by the Royal College of Pathologists and NATA. [The Respondent admits this particular.] 6. From 17 February 2015 up to 6 January 2017the practitioner failed to provide Patient A with evidence-based, alternative treatment options for his diagnoses set out in particulars (3) and (4). [The Respondent admits this particular.] 7. On dates From 17 February 2015 the practitioner failed to appropriately review and reconsider his diagnoses set out in particulars (3) and (4). [The Respondent admits this particular.] 8. The practitioner inappropriately prescribed and maintained Patient A with oral and intra-venous antibiotics as set out in Annexure A from 17 February 2015 up to 6 January 2017, for the infections described in particulars (3) and (4) in the following circumstances: a. particular (3) is repeated and relied on; b. the type, combination, dosage, and duration of the antibiotic regime was inappropriate; c. tinidazole is ineffective against Borrelia; d. the practitioner unnecessarily exposed Patient A to the risk of side effects from long term antibiotics including adverse drug reactions, allergies and hypersensitivity reactions, and antibiotic resistance; e. the practitioner unnecessarily exposed Patient A to the risk of septicaemia and clots from the IV antibiotics; f. the practitioner failed to have adequate regard to the risk of antibiotic resistance in the community and the need for medical practitioners to use antibiotics judiciously; g. the practitioner failed to monitor Patient A's full blood count and liver function tests when using antibiotics; [The Respondent admits particulars a-g.] h. the practitioner's antibiotic regime on 18 November 2015 required a week on-week off' alternating of antibiotics which risked bacterial resistance for Patient A. [The Respondent denies this sub-particular.] 9. On and from 17 February 2015 the practitioner failed to explain to Patient A that his treatment regime set out at particular (8) was novel and experimental. [The Respondent admits this particular.] 10. From 17 February 2015 up to 6 January 2017 the practitioner exposed Patient A to unnecessary cost by having her purchase antibiotics: a. the circumstances of particulars (3) to (9) are repeated and relied on. [The Respondent admits this particular.] 11. From 27 January 2015 the practitioner failed to consider, discuss and then arrange a referral for Patient A to see an infectious diseases physician or seek any advice from an infectious diseases physician: a. the circumstances of particulars (3) to (9) are repeated and relied on. [The Respondent admits this particular.] 12. The practitioner failed to explain to Patient A the likely adverse side effects of long-term antibiotics when combined with the use of plaquenil and cortisone as set out in Annexure A, and then obtain her consent to such treatment. [The Respondent admits this particular.] 13. On 27 January 2015 the practitioner inappropriately diagnosed adrenal fatigue when such a diagnosis was not a recognised medical diagnosis and a very uncommon manifestation in people with Lyme disease. [The Respondent admits this particular.] 14. On 17 February 2015 the practitioner inappropriate diagnosed hypothyroidism in circumstances where: a. Patient A had normal thyroid function in January 2015 and her elevated thyroid antibodies only required monitoring; b. the practitioner's diagnosis was based on the incorrect view that it was a very common manifestation in people with Lyme disease. [The Respondent admits sub-particulars a-b.] 15. From 17 February 2015 February 2016 the practitioner inappropriately treated Patient A for hypothyroidism in the circumstances below: a. on 17 February 2015 the practitioner inappropriately prescribed "thyroid extract 15mg (100BD + 1)" when Patient A's baseline thyroid function testing results were normal, and there was inadequate evidence of an autoimmune thyroiditis with clinical hypothyroidism; b. on 8 April 2015 the practitioner prescribed Patient A with thyroid extract 15mg capsules in circumstances where her thyroid function test results were normal; c. from September 2015 through to February 2016 the practitioner failed to respond to thyroid function testing results which suggested Patient A was receiving excessive thyroxine; d. the practitioner treated Patient A with a complimentary supplement for thyroid dosing (thyroid extract), rather than standard thyroxine, which made titrating the dose difficult as the quantity of active T3 or T4 in these preparations is unknown; e. the practitioner failed to seek advice from a specialist biochemist or endocrinologist prior to and during his treatment of Patient A for a thyroid condition. [The Respondent admits to sub-particulars a-e.] 16. The practitioner inappropriately prescribed the following drugs to Patient A: a. from 1 May 2015 the practitioner prescribed plaquenil without the support of relevant pathology tests results prior to commencing and maintaining the treatment; b. on 5 February 2016 the practitioner prescribed azithromycin and minocycline for biofilms in circumstances where the antibiotics would not have a material effect on biofilms in Patient A's case; [The practitioner admits this particular.] c. from 1 July 2016 to November 2016 the practitioner prescribed Cortisone therapy (Cortate 5mg and 10mg), which contributed to Patient A's weight gain; d. from 1 July 2016 to November 2016 the practitioner prescribed Adrenotone for "probably non-Addison's adrenal insufficiency" which was not a recognised medical diagnosis; e. on 26 October 2016 the practitioner inappropriately prescribed naltrexone and DHEA which were not indicated for Patient A. [The Respondent admits sub-particulars a-e.] 17. On 18 November 2015 the practitioner failed to appropriately respond to Patient A's neurological complaints including brain fog and fatigue, in that he did not: a. take a detailed history in relation to her neurological symptoms; [The Respondent does not admit this sub-particular, but accepts that the examination was not recorded.] b. arrange a central nervous system examination; c. reconsider his antibiotic regime as a contributor to the symptoms. [The Respondent admits sub-particulars b-c.] 18. On about 6 April 2016 the practitioner inappropriately advised Patient A that she may have Addison's disease in circumstances where she had a normal short synacthen test result and where the practitioner had not excluded other explanations for Patient A's fatigue. [The Respondent does not admit this particular.] 19. On 1 July 2016 the practitioner inappropriately diagnosed "mold issues" (sic) which was not a medically recognised condition. [The Respondent denies this particular. Mould issues were noted in the records, but not as a diagnosis.] 20. On and from 24 November 2014 the practitioner failed to communicate appropriately with Patient A's regular general practitioner in that: a. Patient A saw the practitioner with concerns about having Lyme disease; b. the practitioner investigated, diagnosed, and treated Patient A for conditions other than Lyme disease; c. the practitioner first wrote to Patient A's GP on 29 May 2015 at Patient A's request; d. the practitioner failed to appropriately write to Patient A's GP about his treatment and observations, only doing so by letters which lacked sufficient clinical detail on 29 May 2015, 4 September 2016 and 18 January 2017 in response to Patient A's GP's request for his medical records, and on 29 October 2016. [The Respondent admits sub‐particulars a‐d.] 21. The practitioner inappropriately utilised tele-health consultations for Patient A for his consultations with Patient A from 27 January 2015 until 22 January 2017, contrary his obligations under the Medical Board of Australia's guideline 'Technology-based patient consultations' in circumstances where, through video and phone consultations instead of in person consultations: a. he failed to assess Patient A's patient's condition, based on her clinical signs and appropriate physical examination as set out in particular (2); b. he failed ensure that there was sufficient clinical justification for the proposed treatment for Patient A; c. he failed to adequately inform Patient A's general practitioner of her progress and keeping them well-informed, as set out in particular (20). [The Respondent admits sub‐particulars a‐c.] 22. In the circumstances of particulars (1) to (21) above the practitioner failed to appropriately manage Patient A during the therapeutic relationship. [The Respondent admits this particular.]" 1. Complaint Two concerns Patient B, a female, born 1988: "COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: iii. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or iv. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT TWO On 6 September 2017 and 18 October 2017 Patient B consulted the practitioner in his rooms while pregnant. On 8 December 2017 and 13 December 2017 the practitioner had two further phone consultations with Patient B. PARTICULARS OF COMPLAINT TWO 1. On 6 September 2017 the practitioner failed to adequately assess and examine Patient B in that: a. he did not obtain an adequate history from Patient B relevant to her presentation and symptoms; b. he failed to perform an adequate physical and systems examination of Patient B. [The Respondent admits sub-particulars a-b.] 2. On 6 September 2017 the practitioner unnecessarily and inappropriately ordered Lyme disease testing for Patient B in the following circumstances: a. particular (1) above is repeated; b. the practitioner had not considered and investigated other more likely diagnoses; c. Patient B approached the practitioner with concerns about whether she had Lyme disease by sexual transmission from her partner (Patient C); d. the practitioner ordered the testing based on the incorrect view that sexually transmitted Borreliosis was a risk for Patient B; e. there was no evidence from appropriately accredited laboratories that Patient C had Lyme disease; f. Patient C had completed a course of treatment with the practitioner for Lyme disease in August 2015; g. the practitioner arranged tests for Patient B from laboratories which were not appropriately accredited by the Royal College of Pathologists and NATA. [The Respondent admits sub-particulars a-g.] 3. On 18 October 2017 the practitioner inappropriately diagnosed Patient B with asymptomatic or persistent borreliosis in circumstances where: a. particulars (1) and (2.c)-(2.g) above are repeated; b. Patient B had no objective risk factors for the development of such pathology; c. Patient B did not report any subjective features supporting such diagnoses; d. the test results ordered and received by the practitioner did not support the diagnoses; e. there was inadequate evidence that Patient B had a bacterial infection of any type. [The Respondent admits sub-particulars a-e.] 4. On 18 October 2017 the practitioner inappropriately prescribed Patient B with weekly bicillin injections to treat Lyme disease in the following circumstances: a. particular (3) is repeated; b. the practitioner was treating Patient B for the risk of transmission of Lyme disease to her unborn child, a view which was not an evidence based medical position in Patient B's case; [The Respondent admits sub-particulars a-b.] c. Patient B was in her third trimester of pregnancy and the practitioner failed to first seek input from or notify Patient B's obstetric team; [The Respondent admits this sub-particular.] d. the practitioner failed to consult an infectious diseases specialist. [The Respondent admits this sub-particular.] 5. On 18 October 2017 the practitioner inappropriately told Patient B that he would review her and her child when her child was born in circumstances where: a. particulars (3), (4.c) and (4.d) are repeated; b. the practitioner ought to have referred Patient B back to her general practitioner and obstetric team. [The Respondent admits complaint [sic - particular] 5.] 6. On 8 December 2017 the practitioner inappropriately advised Patient B to have one injection of penicillin in her third trimester of pregnancy (in place of his advice to her in particular (4)), to reduce the risk of her baby being born with borreliosis in the circumstances of particulars (3), (4) and (5.b). [The Respondent admits complaint [sic – particular] 6.] 7. The practitioner failed to provide adequate information to Patient B to enable her to consent to the antibiotic therapy set out in particulars (4) and (6) in that: a. the practitioner did not provide Patient B with balanced, evidence-based advice about his diagnosis and treatment recommendations; b. the practitioner's treatment regime was novel and or experimental. [The Respondent admits sub-particulars a-b.] 8. On or about 18 October 2017 the practitioner inappropriately refused to provide Patient B with a complete copy of her blood and urine test results on request, contrary to his obligations under the Health Records and Information Privacy Act 2002. [The Respondent denies this particular.] 9. On or about 18 October 2017 the practitioner inappropriately advised Patient B not to disclose to her other medical professionals that she was receiving Lyme disease treatment from him, contrary to his obligations under the Medical Board of Australia's Code of Conduct. [The Respondent denies this particular.]" 1. Complaint Three concerns Patient C, a male, born 1977: "COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT THREE Patient C consulted the practitioner from 5 August 2013 to 6 August 2015 in nineteen consultations in his rooms, one telephone consultation and on one occasion the practitioner mailed a script for a two-week supply of tinidazole to Patient C. The practitioner treated Patient C for approximately 18 months using antibiotics for his diagnosis of Lyme disease – Bartonellosis and persistent Borreliosis (hereafter "Lyme disease"). PARTICULARS OF COMPLAINT THREE 1. On 5 August 2013 the practitioner inappropriately focussed his investigations of Patient C on Lyme disease instead of investigating and excluding, and properly examining Patient C for, other more common diagnoses. [The Respondent admits this particular.] 2. On 2 September 2013 the practitioner inappropriately diagnosed Patient C with Lyme disease in circumstances where: a. he did not adequately assess and investigate Patient C for those diagnosis; b. Patient C's clinical history did not support his diagnosis; c. Patient C did not have a history of a tick bite in another country; d. Patient C did not have a confirmed erythema migrans rash; e. the practitioner relied in part on a test from Australian Biologics which was not a laboratory accredited by the Royal College of Pathologists and NATA; f. the practitioner failed to properly interpret the test results available to him by relying on them for his diagnoses. [The Respondent admits sub-particulars a-f.] 3. Prior to prescribing to Patient C as set out in particular (4) below the practitioner failed to obtain consent from Patient C in that: a. the practitioner's treatment regime was novel and or experimental; b. the practitioner did not provide Patient C with balanced, evidence-based advice about his diagnosis and treatment recommendations; c. provide Patient C with evidence-based, alternative treatment options for his diagnoses; d. the practitioner failed to communicate to Patient C about and have appropriate regard to the risk of harm to Patient C from his long-term antibiotic regime. [The Respondent admits sub-particulars a-d.] 4. On 2 September 2013 up to 6 August 2015 the practitioner inappropriately prescribed Patient C with the medications in Annexure C for Lyme disease in the following circumstances: a. particular (2) above is repeated; [The Respondent admits this sub-particular.] b. the practitioner failed to record a history of Patient C's recent overseas travel during his treatment of him; [The Respondent denies this sub-particular.] c. Patient C did not have any current infections that required treatment; d. Patient C's symptoms continued to be non-specific to the practitioner's diagnoses and the practitioner failed to investigate and exclude other more common diagnoses, [The Respondent admits sub-particulars c-d.] e. the practitioner failed to reflect on whether his antibiotic regime was contributing to Patient C's symptoms; [The Respondent denies this subparticular.] f. the practitioner failed to conduct examinations and adequate examinations of Patient C throughout his treatment of him; g. from 10 November 2014 the practitioner inappropriately advised Patient C to commence long-term IV antibiotics without re-assessing Patient C's clinical response to treatment, reconsidering his diagnosis, and first ordering pathology. h. the practitioner unnecessarily exposed Patient C to the risk of septicaemia and clots from the IV antibiotics; i. the practitioner exposed Patient C to the risk of hypersensitivity reactions and antibiotic resistance; j. the practitioner failed to have adequate regard to the risk of antibiotic resistance in the community and the need for medical practitioners to use antibiotics judiciously. [The Respondent admits sub-particulars f-j.] 5. While prescribing to Patient C as set out in particular (3) the practitioner failed appropriately assess and investigate him in that he did not: a. make enquiries of previous investigations or consultations with other practitioners or specialists with respect to his diagnoses; b. re-assess Patient C's clinical response to treatment and reconsider his diagnosis of Lyme disease; c. seek a neurologist's opinion in response to the 11 September 2014 Brain Spect-CT report and instead inappropriately attributed the changes to Lyme disease; d. offer Patient C the option of or seek a specialist infectious diseases second opinion. [The Respondent admits sub-particulars a-d.] 6. From 2 September 2013 up to 6 August 2015 the practitioner exposed Patient A [sic–C] to unnecessary cost by having her [sic–him] purchase antibiotics: a. the circumstances of particulars (2), (4) and (5) are repeated. [The Respondent admits complaint [sic – particular] 6.] 7. On 30 September 2014 the practitioner prescribed Losec to Patient C without taking an adequate history and examination relevant to the prescription. [The Respondent admits this particular.] 8. On 18 June 2015 the practitioner failed to investigate possible causes of the 11 May 2015 abnormal liver function test results. [The Respondent admits this particular.] 9. The practitioner failed to communicate his care and treatment of Patient C with Patient C's regular GP and other treating practitioners. [The Respondent admits this particular.]" 1. Complaint Four concerns Patient D, a female, born 1963: "COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or Ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT FOUR Patient D consulted the practitioner from 2010-2013 at the practitioner's rooms in Edgecliff, from 2014-2015 at the practitioner's Lilyfield rooms, in 2015 at his Gordon rooms and thereafter until 2017 by phone. PARTICULARS OF COMPLAINT FOUR 1. From 28 February 2012 to 13 September 2017 the practitioner prescribed Hypnoderm 1mg (Flunitrazepam) to Patient D without having an authority under s28(2) of the Poisons and Therapeutic Goods Act 1966 (PTGA). [The Respondent admits this particular.] 2. Prior to 1 December 2017 the practitioner failed to make himself aware of the requirements of s28 of the Poisons and Therapeutic Goods Act 1966 (PTGA) before prescribing drugs of addiction. [The Respondent admits this particular.] 3. From 28 February 2012 to 13 September 2017 the practitioner inappropriately prescribed Hypnoderm 1mg to Patient D to treat insomnia as set out in Annexure D in that the practitioner failed to: a. first obtain a detailed history from Patient D relevant to her complaints and his prescription; b. first discuss and then trial alternative, non-pharmacological therapies and counselling on lifestyle for Patient D; c. advise Patient D that Duromine which he had prescribed to Patient D from 27 March 2010, had a known side effect of insomnia and to stop the drug first; d. appropriately re-assess Patient D and the need for continued prescription of Hypnoderm 1mg. [The Respondent admits sub-particulars a-d.] 4. From 15 November 2012 to 13 September 2017 the practitioner inappropriately prescribed Zolpidem (Stilnox) to Patient D to treat insomnia as set out in Annexure D in that: a. particulars 3.a to 3.d (by reference to Zolpidem) are repeated; b. the practitioner prescribed benzodiazepines and opiate medications with zolpidem which risked significant harm to Patient A. [The Respondent admits sub-particulars a-b.] 5. The practitioner inappropriately prescribed Hypnoderm 1mg and Zolpidem concurrently to Patient D as set out in Annexure D in that: a. particulars 3.a to 3.d, and 4.b are repeated; b. the practitioner failed to respond to Patient D's drug-seeking behaviours and was at risk of taking both medications together. [The Respondent admits sub-particulars a-b.] 6. From 12 November 2013 to the practitioner inappropriately prescribed modafinil to Patient D to improve alertness in circumstances where: a. it was inappropriate to prescribe modafinil to a patient who was taking multiple benzodiazepines, opiates, Hypnoderm and Duromine; b. the practitioner had not first made a diagnosis, nor investigated or assessed Patient D for underlying pathology, prior to prescribing modafinil; c. the practitioner failed to first wean Patient D off her sedatives and observe changes in her alertness. [The Respondent admits sub-particulars a-c.] 7. The practitioner inappropriately prescribed diazepam to Patient D as set out in Annexure D in circumstances where: a. the practitioner first failed to obtain a relevant history and further investigate her complaints of insomnia; b. diazepam had the potential to be abused by Patient D; c. the practitioner failed to assess and appropriately respond to whether Patient D was dependent on or abusing diazepam; d. the practitioner failed to first advise and trial Patient D on simple non-pharmacological measures or on prescribed medication to manage her insomnia. [The Respondent admits sub-particulars a-d.] 8. On 2 December 2015 the practitioner inappropriately prescribed Oxycontin (20mg 1-2 mane) to Patient D for neck and upper thoracic pain in circumstances where: a. the practitioner failed to first advise and trial Patient D on simple non-pharmacological measures to manage her pain, including referral to physiotherapy or a psychologist for these measures; b. the practitioner had not first arrived at a working diagnosis prior to prescribing the Oxycontin or investigated the pain; c. the practitioner prescribed without adequate pain management strategies; d. the practitioner failed to assess and appropriately respond to whether Patient D was dependent on or abusing Oxycontin; [The Respondent admits sub-particulars a-d.] 9. On 2 December 2015 the practitioner provided inadequate and confusing instructions to Patient D by phone for the prescription in particular 8, putting her at risk of accidental overdose. [The Respondent admits this particular.] 10. From 12 February 2016 until 18 November 2016 the practitioner inappropriately continued to prescribe OxyContin 20mg to Patient D in circumstances where: a. particular 8 is repeated; b. the practitioner failed to conduct an examination of Patient D; c. the practitioner failed to assess and revise his management plan for treatment of her pain in response to the medication; d. the practitioner failed to follow up on his plan on 2 December 2015 for a CT cervical and thoracic spine. [The Respondent admits sub-particulars a-d.] 11. On 13 September 2017 the practitioner inappropriately prescribed OxyContin (20mg) and panadeine forte to Patient D in that: a. he did not to first obtain an adequate history from Patient D in response to Patient D's complaint of a recent whiplash injury; b. he did not perform a physical examination of Patient D in response to Patient D's complaint of a recent whiplash injury; c. the practitioner had not first arrived at a working diagnosis based on any examination or investigations, prior to prescribing Panadiene Forte; d. the practitioner failed to assess and appropriately respond to whether Patient D was dependent on or abusing OxyContin; e. the practitioner failed to first advise and trial Patient D on simple non-pharmacological measures to manage her pain, including referral to physiotherapy or a psychologist for these measures; f. the practitioner prescribed without adequate pain management strategies. [The Respondent admits sub-particulars a-f.] 12. On 20 September 2017 the practitioner failed to assess and appropriately respond to whether Patient D was dependent on or abusing OxyContin in that: a. the practitioner posted an additional script of oxycodone 20mg to Patient D after Patient D reported to the practitioner on 20 September 2017 that she had not received the script he had sent her on 13 September 2017; b. Patient D had previously expressed similar drug seeking behaviour, including at the previous consultation on 25 January 2017; c. the practitioner had cautioned Patient D on the consultation prior to that on 10 December 2016 that he would not replace scripts she lost; d. the practitioner mailed the additional script without first consulting databases (such as local pharmacists, Medicare's Prescription Shopping Information Service). [The Respondent admits sub-particulars a-d.] 13. On the dates set out in Annexure D the practitioner failed to refer Patient D to a pain specialist while prescribing opiates and other drugs for pain. [The Respondent admits this particular.] 14 From 27 March 2010 to 13 September 2017 as set out in Annexure D the practitioner inappropriately prescribed phentermine (30mg daily) (Duromine) to Patient D in that: a. Patient D requested the medication on 27 March 2017 from the practitioner to lose weight for a wedding; b. the practitioner first prescribed the drug on 27 March 2010 without obtaining a clinical history or conducting an examination of Patient D, other than her blood pressure, assessing her BMI or taking waist measurement; c. the practitioner failed to discuss and trial non-pharmacological interventions to achieve weight loss; d. the practitioner failed to assess and appropriately respond to whether Patient D was dependent on or abusing Duromine. [The Respondent admits sub-particulars a-d.] 15. From 2014 the practitioner started intermittently having consultations with Patient D by phone and then from 2 December 2015 most of his consultations for Patient D were by phone. The practitioner inappropriately prescribed to Patient D during tele-health consultations for Patient D as set out in the particulars above, contrary to the Medical Board of Australia's guideline 'Technology-based patient consultations' in circumstances where a. Patient D requested, and the practitioner prescribed her with, opioid medication for pain and other medications, by phone without adequate assessment; b. the practitioner failed to assess and appropriately respond to whether Patient D was dependent on or abusing the prescriptions he provided to her; c. the practitioner did not first assess whether Patient D could and should attend his rooms to be assessed and physically examined or alternatively arrange for Patient D to attend the rooms of a closer medical practitioner trained in drug and alcohol issues with a multidisciplinary approach. [The Respondent admits sub-particulars a-c.]" 1. Complaint Five concerns Regulatory breaches, alleged in respect of all of Patients A to D: "COMPLAINT FIVE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened: i. up to 30 June 2010 the Medical Practice Regulation 2008 (repealed) ("the 2008 Regulation"); ii. from 1 July 2010 to 31 August 2016 the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) ("the 2010 Regulation"); iii. from 1 September 2016 onwards the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the 2016 Regulation"). a provision of the Health Practitioner National Law Regulations. BACKGROUND TO COMPLAINT FIVE The backgrounds to Complaints One, Two, Three and Four are repeated. PARTICULARS OF COMPLAINT FIVE Patient A 1. The practitioner's consultation notes for Patient A on 24 November 2014 failed to record sufficient particulars of the clinical opinion reached by the practitioner for his entry, "consider borreliosis" including medical history and symptoms, contrary to schedule 2, clause 1(2) of the 2010 Regulations. [The Respondent admits this particular.] 2. The practitioner's consultation notes failed to record sufficient particulars of the clinical opinion reached by the practitioner, contrary to schedule 2, clause 1(2) of the 2010 Regulations: a. the basis for ordering cortisol levels and DHEA on 6 April 2015; b. the basis for ordering a full blood examination and liver function testing on 18 November 2015; [The Respondent admits sub-particulars a-b.] c. the symptoms justifying testing for considering coeliac disease by Short Synacthen testing when the patient had been on high dose long term antibiotic therapy and the practitioner had not arranged serology screening first. [The Respondent denies this sub-particular.] 3. The practitioner failed to document the advice he gave to Patient A about the risks and benefits of the treatment he was providing to her including for Lyme disease and related co-infections, and his thyroid treatment, contrary to schedule 2, clause 1(2) of the 2010 Regulations. [The Respondent admits this particular.] 4. The practitioner failed to record written consent from Patient A to his proposed treatment, contrary to schedule 2, clause 1(5) of the 2010 Regulations. [The Respondent admits this particular.] 5. The practitioner's overall record keeping for Patient A lacked sufficient detail of the basis for his treating decisions and clinical opinion for why various testing was ordered by him, contrary to schedule 2, clause 1(3) of the 2010 Regulations. [The Respondent admits this particular.] Patient B 6. The practitioner's notes for his care and treatment of Patient B lacked sufficient detail, contrary to contrary to schedule 4, clause 3 of the 2016 Regulations in that: a. the documentation is sparse and is inadequate to validate his clinical decision-making processes; b. he recorded insufficient detail about whether he conducted, and if so the detail of, any assessments, examinations; c. he did not record the details of the information provided to Patient B including the risks of the treatment he provide and proposed to provide to Patient B. [The Respondent admits sub-particulars a-c.] Patient C 7. The practitioner's notes for his care and treatment of Patient C lacked sufficient detail, contrary to contrary to schedule 2, clause 2 of the 2010 Regulations in that he did not record the details of the information provided to Patient C including the risks of the treatment he provided and proposed to provide to Patient C. [The Respondent admits this particular.] Patient D 8. The practitioner's notes for his care and treatment of Patient D lacked sufficient detail, contrary to contrary to schedule 1, clause 2 of the 2008 Regulations, schedule 2, clause 2 of the 2010 Regulation and schedule 4, clause 3 in that the notes generally did not record: a. details of his clinical assessments of Patient D including history taking and physical examination b. adequate details of his consultations other than describing complaints and his prescribing; c. details of investigations and if none were thought to be necessary why; d. thorough assessment, examinations or relevant investigations. e. details of the discussions, explanations and advice provided by the practitioner including the benefits and risks of his treatment. [The Respondent admits sub-particulars a-e.]" 1. Complaint Six concerns the allegation that the Respondent's unsatisfactory professional conduct amounts to professional misconduct: "COMPLAINT SIX 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 SIX 1. Complaints One to Four are repeated and relied on individually and cumulatively. 2. Two or more of the particulars of Complaints One to Five are relied upon cumulatively. 3. Complaints One to Five are repeated and relied on cumulatively. [No specific reply was made to Complaint Six.]" 1. Annexed to the HCCC Complaint are schedules of drugs prescribed by Dr Dobie for Patients A, C, and D. 2. Dr Dobie's written statement to the Tribunal dated 24 May 2021 (Ex R1, tab 1) mirrors the admissions made in his Amended Reply (which have been reproduced in bold type above). Discussion Lyme disease 1. As already noted, Dr Dobie explained to the Tribunal that his particular interest in Lyme disease grew out of an interest in, and a concern for, patients who suffered symptoms of fatigue over an extended period, and "had been unable to obtain a diagnosis and a path for recovery" from "conventional medicine" (see [19]-[22] above). 2. Submissions made on Dr Dobie's behalf went on to note (pars 7-8): "7. Dr Dobie became convinced that for many of these patients, Lyme disease provided an explanation for their ongoing non-specific symptoms. Dr Dobie invested a significant amount of energy, financial resources, and commitment, to developing, in his mind, an ability to understand and treat this condition. 8. While Dr Dobie now acknowledges that this energy and investment was misplaced, it was without question genuine and came out of an impulse to provide a solution for patients whose medical needs were not, from Dr Dobie's perspective, being met by the medical profession in Australia." 1. The Tribunal takes no issue with those submissions, and notes that, in 2018, Dr Dobie himself said to the HCCC (Ex A1, Vol 2, tab 33, p 1, par 2): "I am a General Practitioner and as such I am qualified to treat infectious diseases, including Lyme disease. General practitioners treat infectious disease frequently and are highly competent at treating infectious diseases. I have been a general practitioner for 35 years and thus have been treating infectious diseases longer than most infectious disease specialists." 1. We will now look more closely at all four particular cases upon which the HCCC relies, and of which patients A to C might be described as "Lyme patients". Complaint One – Patient A (2014-2017) 1. Patient A suspected she may have had Lyme disease, and sought Dr Dobie out after she became disappointed that specialists she had consulted could not provide treatment for her "multitude of not necessarily interconnected physical symptoms" (HCCC submissions, par 53). 2. We are satisfied that Dr Dobie did not thoroughly examine Patient A at their first consultation, and we note that all subsequent consultations were conducted electronically. 3. Dr Dobie admitted in his oral evidence that he had no recollection of performing a physical examination, yet his notes include: "consider Borreliosis, ? diabetes insipidus, ? adrenal fatigue, ? hypothyroid, weight gain" (HCCC submissions, par 56). 4. Some years of treatment followed, without any opportunity for Patient A or Dr Dobie to refer to any changes in any "baseline markers" in any of her conditions, or possible conditions, two of which, he now accepts, were unsupported by mainstream medicine, namely Borreliosis and adrenal fatigue. 5. Turning to Borreliosis first, we note that Patient A could not recall any tick bite, but Dr Dobie diagnosed and treated her for Borreliosis on the basis of "a positive urine PCR test from a laboratory which [he] knew was not accredited and whose testing was controversial", while other pathology tests were inconclusive (HCCC submissions, par 57). 6. Dr Dobie appears to have investigated no further, and he admits that he should have considered chronic fatigue syndrome (CFS). 7. He did not explain to Patient A that "she did not have relevant risk factors for Lyme disease or related diagnoses" (HCCC submissions, par 57), and the treatment he prescribed for Patient A was itself controversial, and brought her no apparent improvement. It was unstructured, risky, and expensive, and he failed to explain to her that it was novel or experimental. 8. In respect of the note "? adrenal fatigue", we observe that such a diagnosis is not medically recognised, and, in this instance, led to Dr Dobie's inappropriate diagnosis and treatment of hypothyroidism, and his speculation that Patient A had a "non-Addison's adrenal insufficiency", another "non-diagnosis" (per Dr Ellis, Ex A1, tab 9, p 6). 9. Dr Dobie failed to seek advice from an endocrinologist, an infectious diseases physician, or a specialist biochemist, prior to or during his treatment of Patient A, and he also failed to provide her (for almost two years in 2015-2017) with evidence-based alternative treatment options. 10. In his oral evidence, Dr Dobie accepted Dr Ellis's criticism that, in diagnosing and treating Patient A for Lyme disease, he made what counsel for the HCCC described (par 62) as "an extraordinary deviation from standard accepted clinical practice in Australia". 11. He disputed, or failed to concede, in his Reply, only very few of the particulars in the HCCC's complaint regarding Patient A, but even his own counsel's submissions conceded (pars 17-21) that his evidence to the Tribunal did not negate those particulars. 12. Although Patient A was a "challenging" or "complex" patient, he accepts (submissions, par 22) that his treatment of her was "inappropriate and unhelpful", that he should have sought specialist support for her, and that when his treatment clearly "wasn't working", he should have discontinued it and referred her back to her primary GP (par 23). 13. In short summary, we are satisfied that, in the case of Patient A, Dr Dobie (1) failed to examine her closely; (2) ordered unnecessary/unaccredited tests; (3) mis-diagnosed her; (4) mis-treated her with a mixture of drugs (pp 1-4 of Annexure A to the Schedule of the HCCC Complaint); (5) failed to explain that his treatment was novel/experimental, and risky; and (6) failed to consult her regular treating GP. 14. We are satisfied that this level of unprofessional conduct amounts to professional misconduct. Complaint Two – Patient B (2017) 1. Patient B is the wife of Patient C, whom Dr Dobie had treated between August 2013 and August 2015, for persistent Borreliosis. 2. Two years later, in 2017, Patient B approached Dr Dobie because she was pregnant, and was concerned about (1) the possible transmission to her from Patient C of Borreliosis, and, prospectively, (2) the transmission of it from her to her unborn child. 3. She admits that she was angry with Dr Dobie – possibly only "after the event" – about his treatment of her husband. 4. When Patient B saw Dr Dobie she was asymptomatic, and displayed no objective risk factors for Borreliosis infection. 5. Dr Dobie claims his treatment of Patient C had been successful, and that Patient C had fully recovered, but there was no evidence from accredited laboratories that Patient C had ever had Lyme disease, and the HCCC further submits that there is no evidentiary basis for the view that Patient B could transmit Lyme disease to her baby. 6. Patient B reported fatigue, and poor memory and concentration, but Dr Dobie admits that he failed to obtain an adequate history from her, and/or to perform an adequate examination of her. 7. He told the Tribunal that he reflected on his treatment of Patient B after he considered the complaint received from the HCCC regarding Patient A, and that he also reviewed, at that time, some material about sexual transmission of Borreliosis. Realising that there were no confirmed cases of sexual transmission, he concluded that he was in error in prescribing penicillin for Patient B. 8. The Tribunal notes the serious inconsistency between that evidence and relevant paragraphs of his statement of 24 May 2018 (Ex A1, Vol 2, tab 33, especially pars 108, 109, and 187), and that Dr Dobie was not aware of the relevant articles upon which Professor Collignon has relied. 9. We also note the firmness of Patient B in her oral evidence about Dr Dobie's alleged refusal to give her all her pathology results when she first requested them, and his reluctance to engage with his patients' other treating doctors, a trait to which Patient A also referred. 10. Dr Dobie's own evidence on these matters was unconvincing, but, on balance, we accept his claim that he would never withhold or "cross out" test results, nor tell any of his patients to withhold from other practitioners information about his treatment of them, and we conclude that particulars 8 and 9 of Complaint Two have not been made out. 11. However, Dr Dobie frankly acknowledged that his treatment of Patient B was significantly below the standard expected of him, and we find his treatment of her especially cavalier, given that she was pregnant at the time. 12. To summarise, we are, again in this case, satisfied that Dr Dobie (1) took an inadequate history; (2) carried out an inadequate examination; (3) failed to provide Patient B with balanced advice and a warning that his treatments were novel and experimental to enable her to consent; (4) inappropriately focused the testing he ordered on Lyme disease rather then on "more likely" diagnoses; and (5) diagnosed Patient B inappropriately, and failed to consult relevant specialists, including Patient B's obstetric team. 13. Again we are satisfied that, in the case of Patient B, his treatment meets the test for professional misconduct. Complaint Three– Patient C (2013-2015) 1. Dr Dobie diagnosed Patient C in much the same way as Patient A, despite no history of tick bite. While Patient C presented to him with claims of "chronic fatigue", Dr Dobie did not really explore CFS as a possible diagnosis, relying too heavily on a positive PCR result to validate his focus on Lyme disease. 2. Counsel for the HCCC submits (par 74), and we accept, that Dr Dobie had an inappropriate fixation on Lyme disease, which prevented him from considering more obvious explanations for Patient C's symptoms. 3. Dr Dobie says that he explained to Patient C that the prescribed treatment was controversial, but he accepted that he should have gone into more detail and explained that it was not accepted by mainstream medicine (HCCC submissions, par 75). 4. Dr Dobie denied two particulars of Complaint Three (particulars 4b and 4e). 5. Particular 4b attacks his note-taking, which has been shown to be generally very deficient, but, in light of the notes he has now produced regarding Patient C (Ex R1, tab 5), we do not find that particular 4b has been made out. 6. On particular 4e, we conclude that Dr Dobie is a victim again of his deficient note taking, and that, given his oral assurance about his consideration of Patient C's case, that particular has also not been made out. 7. As with Complaint Two, the admission of the majority of the particulars in Complaint Three establishes significant shortfalls in Dr Dobie's treatment of Patient C: Unjustified concentration on Lyme disease, rather than more common/likely diagnoses/explanations; and failures in taking history, conducting examinations, referring only to accredited laboratories, prescribing appropriately, and consulting other relevant experts. 8. Dr Dobie conceded in cross-examination that he should have referred Patient C to a neurologist, and he could not recall or explain why he did not. 9. The level of Dr Dobie's demonstrated incompetence in this case is such as to amount, here again, in our view, to professional misconduct. Complaint Four – Patient D (2010-2017) 1. Unlike Patients A to C, Patient D cannot be described as a "Lyme patient". 2. The HCCC's submissions note (par 79): "Patient D… was a patient for whom he prescribed medications which he did not normally prescribe, namely duromine, benzodiazepines and opioids, as the Applicant understood his evidence. He said for example that duromine was a drug he had prescribed to very few patients in his career, that over the period 2012 to 2016 he was not treating other patients for insomnia, and that he was not treating other patients with benzodiazepines for muscle spasms or opioids for chronic non-cancer pain." 1. Dr Dobie said of Patient D in his statement of 24 May 2021 (Ex R1, tab 1), from which we have already quoted (at [27] above) paragraphs 66-69, (at par 70): "I accept the expert's criticisms and agree that I should have obtained and recorded a thorough clinical history at the initial consultation. I performed a clinical assessment of Patient D on an ongoing basis, but I agree that my assessment was not thorough nor recorded." 1. Consistent with those admissions, Dr Dobie has admitted all of the particulars of the complaint, acknowledging that Patient D exhibited drug-seeking behaviour, but that his prescribing was unsatisfactory, and his review of her, insufficient (Respondent's submissions, par 46). 2. The HCCC submits (par 81), and Dr Dobie admits (his submissions, par 47) that his treatment of Patient D was "grossly flawed" – he familiarised himself with neither the risks associated with such prescribing, in terms of side-effects, possible drug dependence, and possible drug-seeking behaviour, nor with the relevant rules or other requirements associated with it. 3. He failed to appreciate, let alone take into account, that Duromine can cause insomnia and dependency; he failed to take a clinical history, or to conduct appropriate examinations; and he failed to explore with Patient D possible non-pharmacological interventions, e.g., for her weight problem (HCCC submissions, par 82). 4. While he warned her of the risk of dependence in the case of benzodiazepine, he continued prescribing it for five years, despite admitting in oral evidence that it should be prescribed only for short term use, and he introduced the opioid OxyContin into his prescribing routine for the same issues (HCCC submissions, par 83). He admitted in cross-examination that he gave inadequate consideration to possible side effects. 5. Patient D failed to pursue Dr Dobie's referral of her for a CT scan, and Dr Dobie failed to acknowledge this as a warning sign of her "possible drug-seeking behaviour/abuse/dependence". He was also, at least, "casual", about her repeated claims about needing replacement scripts, or scripts for additional drugs. He complied, without investigation, and prescribed combinations of drugs, despite their known potential for accidental overdose, without necessary authorities, and without consulting any relevant specialists (in sleep, drug and alcohol, or pain), or conducting, in most instances, appropriate physical examinations (see generally HCCC submissions, pars 84-87). 6. Dr Dobie treated Patient D for a very long time, without appropriate investigation of her complaints about pain, insomnia, weight gain and inadequate alertness in her challenging work. 7. Clearly, he should have referred her, at various stages, to a physiotherapist, a psychologist, a pain specialist, and a drug and alcohol specialist. 8. He also lapsed too readily into telemedicine, without adequate assessment of her symptoms, and without adequate consideration of the volume and range of the drugs he was prescribing for her (see Annexure D at pp 7-14 of the schedule to the HCCC Complaint). 9. Again, in this case, Dr Dobie demonstrated unprofessional behaviour so serious as to amount to professional misconduct, as it has come to be understood. Complaint Five – Notes and Records 1. The HCCC submits (par 88) that an examination of Dr Dobie's records, against the background of the relevant regulations, reveals "significant and persistent failures to make and maintain appropriate and adequate records for each of the patients" who have complained. 2. In each case, Dr Dobie's record keeping was a factor in our finding of professional misconduct. His patient records failed to provide adequate accounts of his "assessments, examinations, diagnoses, clinical opinions, consent, advice, planning and reasoning", as required by the regulations relied upon by the HCCC. 3. Dr Dobie's counsel concedes (submissions, par 12) that the admitted deficiencies in record keeping constitute "unsatisfactory professional conduct", by the operation of s 139B(1)(b) of the National Law, and the regulations referred to in the complaint, and he adds: "and it is admitted in full". 4. He does not, however, concede that it amounts to professional misconduct (submissions, pars 15-16), and we do not conclude that, taken alone, this complaint satisfies the test of professional misconduct. Complaint Six – Professional Misconduct 1. As already noted, Complaints One to Five are relied upon for a finding of professional misconduct, and the Tribunal is urged to have regard to: (1) the duration of Dr Dobie's relevant conduct in each case; (2) the lack of any proper scientific basis for the experimental treatment regimes adopted for Patients A, B and C; and (3) the lack of investigation and support for his treatment of, and the nature and extent of his prescribing for, Patient D. 2. The HCCC submits (par 90) that: "… These instances strongly point to the lack of clinical judgment exercised by the respondent in treating vulnerable patients and the questionable ethics of following an arguably (and admitted) unscientific treatment protocol for patients A and C" The HCCC also submits (par 91) that the Tribunal must assess "professional misconduct at the time it occurred and by the standard at the time, rather than through the lens of the respondent's recent abandonment of his prior practices". 1. The Commission draws particular attention (submissions, par 92) to the following: 1. The number of patients complaining in the present matter; 2. The nature of the novel or experimental medicine practised for patients A, B and C; 3. The duration of Dr Dobie's treatment of patients A, B and D; 4. The inappropriate prescribing and the instances of it for patient D (in circumstances where Dr Dobie was not treating a cohort of such patients, and was obliged to make sure he knew what he was doing was clinically appropriate); 5. The failures to make appropriate specialist referrals; 6. The failures to communicate with other practitioners or obtain notes set out in the particulars; 7. The vulnerability of patients, particularly A and D (relying on his expertise and, in patient D's case, her vulnerability due to possible drug dependence issues); 8. The inadequate review of medications and treatment regimes; 9. Placing unjustified faith in novel or experimental treatment of patients A and C; 10. Failing to keep proper records; and, 11. Failing in the instances referred to in the Complaint to make appropriate examinations and obtain histories. 1. We find such conduct to be "sufficiently serious" to justify, in the "evaluative judgment" of this Tribunal, a finding of professional misconduct (per Basten JA in Chen (see [10] above). Conclusion 1. We accept in full the uncontested expert opinions expressed by Dr Ellis and Professor Collignon, and the submission of the HCCC (par 14): "In light of the respondent's admissions the Tribunal may be comfortably satisfied of each of the particulars of Complaints one to five inclusive which have been formerly admitted by the respondent in his Amended Reply. The applicant in this respect does not simply rely on the relevant admission in proof of its allegation. It also relies on the unchallenged expert opinion of Dr Ellis and Profession Collignon, along with the medical records of each patient and the relevant material relating to prescribing found in the schedule to the complaint for patient D and behind tab 25 of exhibit A1". 1. The Tribunal finds Dr Peter Richard Dobie guilty of professional misconduct, and orders that these proceedings be listed for directions, including the fixing of a date for a stage two hearing, the date and time of which is to be notified by the Registrar. ********** 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: 02 December 2021