Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mohammadi (No 2) [2022] NSWCATOD 15 Hearing dates: 1 December 2021 Date of orders: 14 February 2022 Decision date: 14 February 2022 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 is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). (2) Dr Mohammadi's registration as a medical practitioner is suspended for 12 months from the date of these reasons for decision. (3) Under s 149A(1)(b),(d),(e) and (f) of the Health Practitioner Regulation National Law (NSW), on re-commencing practice, Dr Mohammadi's registration will be subject to the following conditions: 1. To obtain Medical Council of NSW (the Council) approval prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 3. To complete within 6 months of the imposition of these conditions at least one face to face or online course concerning Opioids in the treatment of chronic pain as organised by Royal Australian College of General Practitioners and at least one other face to face or online course offered by the Australian and New Zealand College of Anaesthetists in pain management to ensure that he has a proper knowledge of prescribing practices and requirements relating to Schedule 8 drugs; a. Within 3 months of the imposition of these conditions, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned courses; b. Within 1 month of completing the abovementioned courses, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the courses; c. To bear responsibility for any costs incurred in meeting this condition. In the event that the above-mentioned courses are unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the imposition of these conditions. 4. To treat or see no more than 30 patients in any one day. 5. To practise under Category B supervision in accordance with the Council's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to submit to a review and discussion of his practice with his approved supervisor with particular focus on assessment, examination, prescribing practices and compliance with legislative requirements in relation to medical records. b. To authorise the Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 6. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 6 months from the imposition of these conditions and subsequently as required by the Council. b. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. c. The auditor(s) should pay particular attention to prescribing, administering and recording of drugs of addiction and drugs of dependence d. To authorise the auditor(s) to provide the Council with a report on their findings. e. To meet all costs associated with the audit(s) and any subsequent reports. 7. To authorise and consent to any exchange of information between the Council, Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 8. To forward evidence to the Council within 7 days of these imposition of these conditions that he has provided a copy of his conditions to the principal of practice and any other senior officer in any place that he works (including any locum agencies or hospitals). 9. Within 7 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of his conditions to the principal of practice and any other senior officer in any place that he works (including any locum agencies and hospitals). 10. To authorise the Council to exchange information with any future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 11. While the practitioner's principal place of practice is New South Wales, the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 12. If the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, Section 125 to 127 of National Law are to apply, and a review of these conditions can be conducted by the Medical Board of Australia. (4) 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). 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 —conduct amounts to unsatisfactory professional conduct and professional misconduct – appropriate orders Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2010 (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: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 Prakash v Health Care Complaints Commission [2006] NSWCA 153 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 Dr Mohammadi. REASONS FOR DECISION Overview 1. Dr Mohammadi is a general practitioner who prescribed fentanyl to 15 patients between October 2014 and July 2017. Fentanyl is a highly potent and addictive opioid indicated in the management of chronic severe pain. In an earlier decision, we decided that the circumstances in which Dr Mohammadi had prescribed fentanyl triggered the Tribunal's power to suspend or cancel his registration as a medical practitioner: Health Care Complaints Commission v Mohammadi [2021] NSWCATOD 172. 2. In these proceedings, the Health Care Complaints Commission seeks cancellation of Dr Mohammadi's registration with a proviso that he does not apply for review of that order for twelve months: Health Practitioner Regulation National Law (NSW) (National Law), s 149C(7). Dr Mohammadi submits that his registration should not be cancelled or suspended and says that the public interest will be sufficiently protected by making his registration subject to certain conditions. If he is permitted to continue working as a medical practitioner, he hopes to do so for as long as he remains in good health. We have decided to suspend Dr Mohammadi's registration for 12 months. When he resumes practice, he is to be subject to the conditions discussed below and set out in the orders. 3. We will summarise the background to the complaints, the findings we made in the stage one hearing, the relevant legal principles when determining the orders we should make and the factors to be taken into account when determining the appropriate orders. Background to complaints 1. Fentanyl 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). We will refer to it in this decision as an S8 (Schedule 8) medicine. Practitioners need an authority from the Ministry of Health before prescribing fentanyl to a "drug dependent person". 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. One available type of fentanyl patches is known by the brand name, Durogesic. 2. In the stage one decision, we set out the following information about the complaints and Dr Mohammadi's background at [4]-[7]: 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." 5. On 3 November 2017 the HCCC consulted with the Medical Council and decided to conduct an investigation into Dr Mohammadi's prescribing practices. 6. 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. 7. Dr Mohammadi began prescribing fentanyl in 2013 when he started practising on his own at 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. 1. Dr Mohammadi continues to be subject to a condition that he not "possess, supply, administer or prescribe" S8 medicines. The Tribunal's overall findings following the stage one decision 1. We found at [174]-[175] of the stage one decision that: 174. …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. 175. We find 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. 1. While not intending to do harm, Dr Mohammadi was reckless in the doses and quantities of fentanyl he prescribed to some patients who were not currently taking fentanyl. For example, for more than two years after Dr Mohammadi first prescribed fentanyl to Patient B, he was still prescribing 100mcg/hr patches. Tribunal's detailed findings 1. 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 Information Service (PSIS) and the NSW Health Opioid 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 admitted this particular and we found it to have been proven. 2. In an interview conducted by the Pharmaceutical Regulatory Unit (PRU) in September 2017, Dr Mohammadi stated that he always ensures his patients are not "known" to the PSIS. 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. Dr Mohammadi admitted that he did not ask any patient whether they were on the opioid treatment program, however 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. 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. 4. When Patient B told Dr Mohammadi at the third consultation that he had been using fentanyl 100mcg/hr patches for six months, Dr Mohammadi should have been concerned that Patient B was drug dependent and was looking for a doctor who would prescribe him fentanyl. He did not ask Patient B why he had changed from his previous general practitioner and pain team, and chosen to consult him. 5. Dr Mohammadi's initial assessment of Patient C 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 fentanyl 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. Dr Mohammadi should have checked whether Patient C was on the opioid treatment program and consulted the PSIS. 6. 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 have checked whether Patient D was on the opioid treatment program and consulted the PSIS. 7. For Patient E, 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 have checked whether Patient E was on the opioid treatment program and consulted the PSIS. 8. Dr Mohammadi's initial consultation with Patient F on 28 September 2013 was brief and inadequate in relation to drug dependence issues. 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 have checked whether he was on the opioid treatment program and consulted the PSIS. Dr Mohammadi should have contacted Patient F's previous GP. 9. For Patient G, Dr Mohammadi should have contacted the hospital to obtain the discharge summary and 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 have checked whether Patient G was on the opioid treatment program and consulted the PSIS. 10. Dr Mohammadi's initial consultation with Patient H on July 2014 was inadequate with respect to possible drug dependence issues. 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 have checked whether Patient H was on the opioid treatment program and consulted the PSIS. 11. In respect to Patients I, J and K, 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 have checked whether those patients were on the opioid treatment program and consulted the PSIS. 12. Dr Mohammadi failed to adequately assess Patient L. For Patient M, Dr Mohammadi's initial consultation on 15 February 2014 was brief and inadequate with respect to possible drug dependence issues. Dr Mohammadi 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 whether he was on the opioid treatment program at or shortly after the initial consultation. 13. Dr Mohammadi failed to do a proper assessment of Patient N's drug dependency. 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 whether Patient N was on the opioid treatment program at or shortly after the initial consultation. 14. Dr Mohammadi's failure to make these inquiries is conduct that is significantly below the relevant standard for each of these patients. Dr Mohammadi did not understand how strong fentanyl is compared with morphine. Dr Mohammadi's knowledge of the strength of fentanyl was inadequate and incorrect. 15. Complaint 1.2 is that Dr Mohammadi prescribed five patients with fentanyl in excessive quantities and strengths. He admitted that particular for Patients A and D, but not for Patients H, J and L. We found the oversupply particulars to have been proven for Patients A, D and H. For Patient D, the oversupply was for a period of 64 excessive days. For Patient H, the oversupply was for a period of 42 excessive days. That degree of over-supply is significant and is not adequately explained in the patient's notes. In respect to Patients J and L the relevant particulars were not proven. 16. Complaint 1.3 is that, for three of these patients, Patients B, C and N, the purpose of prescribing fentanyl did not accord with the recognised therapeutic standard. We understand that the therapeutic purpose of fentanyl is the management of chronic pain requiring opioid analgesia. Its purpose is not to treat addiction. Dr Mohammadi denies that particular. In the stage one decision at [93], we made the following finding about Dr Mohammadi's conduct in relation to Patient B: 93. 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. 1. In respect to Patient C, Dr Mohammadi's inconsistency and prevarication in his evidence persuaded the Tribunal that he did not consistently conduct any kind of physical examination or assessment prior to prescribing fentanyl. Dr Mohammadi did not consider any other analgesics in the treatment of pain in these patients. 2. In respect to Patient N, Dr Mohammadi did slowly reduce the dosage of fentanyl over a period of two years and eventually refused to write any more prescriptions. Nevertheless, we concluded that that Dr Mohammadi had prescribed fentanyl to treat Patient N's addiction, not to treat chronic pain. 3. Complaint 1.4 is that Dr Mohammadi did not make appropriate and timely referrals for specialist review and advice for 13 patients. Apart from Patient C, we found this particular to have been proven. 4. Complaint 1.5 is that Dr Mohammadi did not respond appropriately when seven patients exhibited drug seeking behaviour. We found this complaint to have been proven for all patients except Patient G. 5. 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 denied this particular, but we found it to have been proven. Dr Mohammadi was aware that most of these patients were drug dependant but did not request an authority because he did not know he needed to apply for one. 6. Complaint 1.7 relates to Patient O who was a minor. Dr Mohammadi failed to obtain an authority to prescribe Ritalin. 7. 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 admitted this particular and we found it to have been proven. 8. Complaint 3 is that Dr Mohammadi is guilty of professional misconduct. Dr Mohammadi denied that he was guilty of professional misconduct. We found 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 amounts to unsatisfactory professional conduct of the most serious kind warranting a finding of professional misconduct. Legal principles when deciding whether to make protective orders 1. One object of the National Law is "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3. In exercising a function under the National Law, "the protection of the health and safety of the public must be the paramount consideration": National Law, s 3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3. 2. The Tribunal should focus on the protection of the public and the maintenance of proper professional standards, not on punishment: Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at [21]-[22]. As Basten JA observed in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. 1. The Court of Appeal held in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] that protecting the health and safety of the public "includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession." 2. In summary, we must take into account any need to protect the public against further misconduct by Dr Mohammadi, as well as the need to protect the public through general deterrence; by reinforcing high professional standards and by maintaining public confidence in the profession. 3. The Commission provided a table of cases where practitioners had wrongly prescribed and/or overprescribed S8 medicines. The Commission submitted that in the last four years or so, the Tribunal has made more stringent orders in cases of this kind. For the reasons given by Barrett JA (MacFarlan JA and Tobias AJA agreeing) in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [22]-[35] we are cautious about relying on these cases, even as a guide. Most of these cases were not sufficiently similar to make a meaningful comparison. As the Court in Lee noted at [34](e): (e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection 1. The degree to which Dr Mohammadi remains a risk to the health and safety of future patients and the need for general deterrence, depends on several matters. Relevant considerations include the seriousness of the conduct, his remorse and insight, any improvements to his knowledge from experience or training and his overall character. One irrelevant consideration is that in November 2021 the Ministry of Health was investigating a further allegation against Dr Mohammadi. As the investigation had not been completed at the time of the stage two hearing, and Dr Mohammadi denied the allegation, we have not taken that matter into account. Seriousness of the findings 1. Dr Mohammadi prescribed fentanyl, a highly potent and addictive drug, to 15 patients for more than two years. He did not do the required checks to see whether those patients were drug dependent. Despite his denials, he knew several of the patients were drug seeking and/or drug dependent. He oversupplied fentanyl to Patients A, D and H. He had almost no understanding of the potency of this medicine and wrongly thought that he was treating their addiction. 2. We appreciate that it can be challenging for doctors to communicate effectively with this cohort of patients, but Dr Mohammadi should have educated himself about the accepted standards for prescribing to drug dependent individuals. While not intending harm, Dr Mohammadi was reckless in the doses and quantities of fentanyl he prescribed to some patients who were not currently taking fentanyl. This is not just a case of being ignorant of the requirements. As Dr Mohammadi acknowledged, the potential for abuse and harm, including death, was high. Insight and remorse 1. In a statement of 26 November 2021, Dr Mohammadi wrote that reading the Tribunal's decision was difficult. He went on: As I did prior to and during the Tribunal Hearing, I admit my conduct in respect of prescribing Schedule 8 medications, the subject of these proceedings was inappropriate. I simply say that at all times, I genuinely believed that I was practising appropriately and caring for my patients. Reading the Decision however, highlighted to me how lacking my care was, because the potential for abuse and harm was high. That has caused me significant shame and regret and I have spent much time contemplating it. 1. When questioned, Dr Mohammadi could not elaborate on his comment that reading the decision was difficult except to say it was "'so stressful for me". He emphasised that he was trying to educate himself so that he would not make the same mistakes again. In answer to the question, "What was your greatest error", Dr Mohammadi could not identify any mistake he had made. His response was that he has not prescribed S8 medicines since that time and is trying to educate himself. We accept that the decision was written from a legal perspective and it may have been difficult for Dr Mohammadi to understand. We are also mindful of the fact that being cross-examined is stressful and Dr Mohammadi may not have been expecting a question of that kind. But we are still concerned that Dr Mohammadi was not able to articulate the various ways in which his knowledge, skill and judgment were deficient. 2. Dr Mohammadi did demonstrate some insight when answering questions from the Tribunal during the stage one hearing. However, during the stage two hearing he was focusing more on what he had done to address the Tribunal's findings ("educate myself") and assuring the Tribunal that he had not prescribed any S8 substances. Improved knowledge and further training 1. Dr Mohammadi believes that he has managed his patients well since the condition was placed on his registration that he not prescribe S8 substances. In particular, he says he has learnt how to identify and manage potential drug seeking patients. If he has concerns, he will contact the patient's pain specialist (if they have one), the Pharmaceutical Regulatory Unit or obtain a Prescription Shopping Patient Summary Report from Services Australia. 2. Dr Mohammadi has undertaken the following courses provided by the Royal Australian College of General Practitioners: a. Clinical Emergency Management Program (intermediate) b. Pain Management Master Class. Overall character and professional references 1. Dr S Kalantar is a consultant physician and gastroenterologist who is involved in a variety of senior clinical leadership and educational roles. He knows Dr Mohammadi from medical school in Iran. Dr Kalantar had this to say: I have spoken with Dr Mohammadi about the Decision and the prescribing conduct and he is sorry about the cases and is keen to educate himself about this matter so not to make such errors of judgement in the future. I think he has a good insight into his actions and will be very unlikely to make similar errors in the future about this and other medical matters. 1. Dr S Kalantar's son, Jahan Kalantar, also provided a reference. He is a partner in a law firm based in Sydney. Mr Kalantar attested to Dr Mohammadi's courtesy, professionalism and kindness. Based on conversations he has had with Dr Mohammadi since the Tribunal's stage one decision, Mr Kalantar said that: I believe that these proceedings have been an enormous source of pain, grief and shame. To his credit, I believe he has used these emotions to encourage himself to learn more about his profession, to improve his skills and to ensure that no such errors are made in the future. 1. Dr Mohammadi provided another reference from Dr Fereshteh Dastouri, a general practitioner with eight years' experience who has known Dr Mohammadi since 2013. She is a family friend. Dr Mohammadi was her mentor and supervisor in 2013 and 2014. She was not a general practitioner at that time but would occasionally sit with him when he was seeing patients. Dr Dastouri says she found Dr Mohammadi to be "professional, caring and knowledgeable". Dr Dastouri has read the Tribunal's stage one decision and says she was surprised as Dr Mohammadi is always cautious about drug seeking patients and prescribing S8 medication. In her opinion, Dr Mohammadi has realised his mistake and has been "working on it". That opinion is of limited weight as it was based solely on discussions she has had with Dr Mohammadi. 2. Dr Hosseini is a general practitioner who has been working as a provisional fellow in pain medicine at various private hospitals in Sydney. For the last few years he has been an opioid treatment program provider. Dr Hosseini has known Dr Mohammadi for eight years and considers him to be knowledgeable and to have great communication skills. In his opinion he has realised his mistakes and has been "working on it". 3. Dr Silberberg provided a professional reference. About 20 years ago, they worked together in a hospital in Newcastle for three years. Dr Silberberg was a consultant at that time. He says that he has had very little experience observing Dr Mohammadi prescribing S8 drugs. In Dr Silberberg's opinion, Dr Mohammadi is an "excellent doctor, well trained, skilful". He added that, "He cares for his patients way beyond what is usual." Dr Silberberg says he has spoken to Dr Mohammadi at length about the mistakes he made and is certain that such errors will never be repeated. We can only give Dr Silberberg's evidence limited weight because he had not read the Tribunal's stage one decision. Conclusion 1. Dr Mohammadi's conduct had the potential to cause serious harm to his patients, including death. He is remorseful and has some insight into the seriousness of his conduct, but was not able to articulate exactly what his mistakes were. In our view, it is appropriate to reprimand Dr Mohammadi and to suspend his registration for 12 months. Dr Mohammadi has started on the journey of gaining the knowledge and skills necessary when prescribing S8 medicines. However, at this stage, we are not persuaded that he has the level of communication skills necessary to withstand the pressures to prescribe those medications to drug seeking or drug dependent individuals. That requires a combination of empathy and firmness which we are not convinced Dr Mohammadi possesses at this stage. 2. For that reason, it is appropriate to impose a condition for Dr Mohammadi "Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW)". That is one of several conditions proposed by the Commission. Another is that he be subject to so-called "Category B" supervision. We set out the full list of proposed conditions list below: 1. To obtain Medical Council of NSW (the Council) approval prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) 3. To complete within 6 months of the imposition of these conditions at least 1 face to face course concerning Opioids in the treatment of chronic pain as organised by Royal Australian College of General Practitioners and at least one other online course offered by the Australian and New Zealand College of Anaesthetists in pain management to ensure that he has a proper knowledge of prescribing practices and requirements relating to Schedule 8 drugs; a. Within 3 months of the imposition of these conditions the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned courses; b. Within 1 month of completing the abovementioned courses, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the courses; c. To bear responsibility for any costs incurred in meeting this condition. In the event that the above-mentioned courses are unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the imposition of these conditions. 4. To treat or see no more than 28 patients in any one day. 5. To practise under Category B supervision in accordance with the Council's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate review body a. At each supervision meeting the practitioner is to submit to a review and discussion of his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements in relation to medical records; b. To authorise the Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 6. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 6 months from the imposition of these conditions and subsequently as required by the Council. b. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. c. The auditor(s) should pay particular attention to prescribing, administering and recording of drugs of addiction and drugs of dependence d. To authorise the auditor(s) to provide the Council with a report on their findings. e. To meet all costs associated with the audit(s) and any subsequent reports. 7. To authorise and consent to any exchange of information between the Council, Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions 8. To forward evidence to the Council within 7 days of these imposition of these conditions that he has provided a copy of his conditions to the principal of practice and any other senior officer in any place that he works (including any locum agencies or hospitals). 9. Within 7 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of his conditions to the principal of practice and any other senior officer in any place that he works (including any locum agencies and hospitals). 10. To authorise the Council to exchange information with any future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions; 11. While the practitioner's principal place of practice is New South Wales, the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law; 12. If the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, Section 125 to 127 of National Law are to apply, and a review of these conditions can be conducted by the Medical Board of Australia. 1. Subject to some relatively minor amendments, we agree that these conditions are appropriate. As to the courses Dr Mohammadi should complete, we do not consider that any of the courses need to be face to face. Since the COVID 19 pandemic, it may be that face-to-face training is not readily available. Condition 3 should be amended to read: 3. To complete within 6 months of the imposition of these conditions at least one course concerning Opioids in the treatment of chronic pain as organised by Royal Australian College of General Practitioners and at least one other course offered by the Australian and New Zealand College of Anaesthetists in pain management to ensure that he has a proper knowledge of prescribing practices and requirements relating to Schedule 8 drugs. 1. Condition 4 requires that Dr Mohammadi see no more than 28 patients in a day. It may be that the Commission's rationale for that number of patients was so that, on average, Dr Mohammadi would see no more than four patients an hour over a seven-hour day. That is relatively few patients. We consider that Dr Mohammadi would safely be able to see up to 30 patients in one day. That number should exclude patients attending for a COVID 19 or other routine vaccination. 2. The Category B supervision condition should be amended to cover all the issues we identified in the stage one decision. The condition should refer, not only to appropriate prescribing practices and compliance with legislative requirements in relation to medical records, but to investigation, assessment, treatment and examination of patients. Condition 5a should be amended to read: 5 a. At each supervision meeting, the practitioner is to submit to a review and discussion of his practice with his approved supervisor with particular focus on assessment, examination, prescribing practices and compliance with legislative requirements in relation to medical records. 1. Category B supervision requires the supervisor to practice at the same location as the practitioner. The supervisor may, in exceptional circumstances, be off-site but must be contactable by phone to provide advice or assistance as required. As the supervisor must be readily available, we agree with the Commission that there is no need for an additional requirement that Dr Mohammadi practise in a group practice. 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. Dr Mohammadi is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. Dr Mohammadi's registration as a medical practitioner is suspended for 12 months from the date of these reasons for decision. 3. Under s 149A(1)(b),(d),(e) and (f) of the Health Practitioner Regulation National Law (NSW), on re-commencing practice, Dr Mohammadi's registration will be subject to the following conditions: 1. To obtain Medical Council of NSW (the Council) approval prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) 3. To complete within 6 months of the imposition of these conditions at least one face to face or online course concerning Opioids in the treatment of chronic pain as organised by Royal Australian College of General Practitioners and at least one other face to face or online course offered by the Australian and New Zealand College of Anaesthetists in pain management to ensure that he has a proper knowledge of prescribing practices and requirements relating to Schedule 8 drugs; a. Within 3 months of the imposition of these conditions, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned courses; b. Within 1 month of completing the abovementioned courses, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the courses; c. To bear responsibility for any costs incurred in meeting this condition. In the event that the above-mentioned courses are unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of the imposition of these conditions. 4. To treat or see no more than 30 patients in any one day. 5. To practise under Category B supervision in accordance with the Council's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to submit to a review and discussion of his practice with his approved supervisor with particular focus on assessment, examination, prescribing practices and compliance with legislative requirements in relation to medical records. b. To authorise the Council to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 6. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 6 months from the imposition of these conditions and subsequently as required by the Council. b. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. c. The auditor(s) should pay particular attention to prescribing, administering and recording of drugs of addiction and drugs of dependence d. To authorise the auditor(s) to provide the Council with a report on their findings. e. To meet all costs associated with the audit(s) and any subsequent reports. 7. To authorise and consent to any exchange of information between the Council, Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions 8. To forward evidence to the Council within 7 days of these imposition of these conditions that he has provided a copy of his conditions to the principal of practice and any other senior officer in any place that he works (including any locum agencies or hospitals). 9. Within 7 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of his conditions to the principal of practice and any other senior officer in any place that he works (including any locum agencies and hospitals). 10. To authorise the Council to exchange information with any future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 11. While the practitioner's principal place of practice is New South Wales, the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 12. If the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, Section 125 to 127 of National Law are to apply, and a review of these conditions can be conducted by the Medical Board of Australia. 1. 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). ********** 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: 14 February 2022