Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Godwin [2022] NSWCATOD 17 Hearing dates: 6 and 7 December 2021 Date of orders: 11 February 2022 Decision date: 11 February 2022 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr G Yeo, Senior Member Dr J Aitken, Senior Member D Telford, General Member Decision: 1. Dr Godwin is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. Dr Godwin's registration as a health practitioner is suspended for six months from 26 February 2022. 3. Dr Godwin 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 medical practitioner convicted of aiding and abetting suicide of his terminally ill partner – where medical practitioner misled police about the extent of his involvement in the suicide – where medical practitioner provided care and treatment to partner – where medical practitioner's clinical records were inadequate - whether conduct amounts to professional misconduct – appropriate orders Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) Cases Cited: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWSC 297 Health Care Complaints Commission v Chen [2017] NSWCA 186 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 Health Care Complaints Commission v Quan [2018] NSWCATOD 111 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Texts Cited: Medical Board of Australia, Code of Conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia, 2014) Medical Council of NSW, "Guideline for self-treatment and treating family members", 2 December 2014 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rowan Godwin (Respondent) Representation: Counsel: A Horvath SC P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Insurance (Respondent) File Number(s): 2021/00166343 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of Patient A is prohibited. REASONS FOR DECISION Overview 1. The Health Care Complaints Commission (the Commission) has applied for disciplinary findings and orders in relation to a registered medical practitioner, Dr Godwin. In 2014 Dr Godwin's partner, Patient A, was terminally ill with breast cancer. On 22 July 2014 she took her own life. More than four years later, Dr Godwin was convicted of "aid and abet suicide of another" contrary to s 31C(1) of the Crimes Act 1900 (NSW). He was sentenced to 12 months imprisonment to be served by way of an intensive corrections order: Crimes (Sentencing Procedure) Act 1999 (NSW), s 7. 2. The conviction led to an investigation of Dr Godwin's role in Patient A's suicide and his care and treatment of Patient A. That investigation revealed that he had helped Patient A die of suicide and had given false information to police about the extent of his involvement. He had also provided care and treatment to Patient A including prescribing so-called Schedule 8 medications. Doing so was said to breach the Medical Board of Australia's, Code of Conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia, 2014). The Code of Conduct warns against doctors treating people with whom they are in a close personal relationship. Dr Godwin's clinical records in relation to Patient A were also found to be deficient. 3. The Commission asserts that the conduct outlined in the complaints amounts to "unsatisfactory professional conduct" or is otherwise in breach of the Health Practitioner Regulation National Law (NSW) (National Law). The circumstances of the offence and misleading police, either alone or in combination with other matters, is said to constitute "professional misconduct" as defined in the National Law. 4. The Commission submits that Dr Godwin's conduct justifies a reprimand and an order suspending his registration for between six and twelve months. Dr Godwin says that a reprimand alone is sufficient for several reasons. His involvement in Patient A's suicide was not pre-meditated, he is remorseful and his treatment of Patient A did not have a negative impact on her care. We accept that Dr Godwin is a highly regarded general practitioner and that he assisted Patient A to die of suicide because she was not sufficiently prepared and he wanted assist her to carry out her wishes. In those circumstances, suspension of his registration for 12 months is not appropriate. But the fact remains that Dr Godwin was convicted of a serious criminal offence and he lied to police to protect himself. To maintain the reputation of the medical profession and the confidence in which that profession is held in the community, we have decided that the appropriate order is to reprimand Dr Godwin and suspend his registration for six months. Background 1. Dr Godwin was first registered as a medical practitioner on 2 December 1978. After working in various hospitals, he became a sole practitioner in 1983. In 1998, he and two other doctors set up the Central Coast Skin Cancer Clinic. Dr Godwin worked there one day a week and remained in private practice on the other days. From January 2009, he worked exclusively in the clinic. Dr Godwin sold his shares in that practice in 2019 and now works part time, specialising in skin cancer treatment. He is 66 years old and would like to continue to work for another four years or so. 2. Dr Godwin first met Patient A, who was a nurse practitioner, in February 2012. By July 2012, Patient A and Dr Godwin were living together. In May 2014, two months before her death, Patient A and Dr Godwin participated in a non-binding marriage ceremony. By all accounts, they had a very close and loving relationship. 3. The statement of agreed facts, which was before the Local Court in the criminal proceedings, conveniently summarises the background facts which led to Dr Godwin being charged with aiding and abetting Patient A's suicide. 1. The deceased, [Patient A] was diagnosed with Stage 4 breast cancer in 2006. She received treatment up until the time of her death. At the time of her death, the deceased's health had declined. She was terminally ill with only weeks to live. 2. The deceased was a registered nurse and nurse practitioner, who had made it very clear to her family that she would have control over her life and more specifically how long she would endure the suffering associated with the cancer and the cancer treatment. 3. During her illness, she had openly discussed with her family 'ending it on her terms'. The deceased had a conversation with her son, (name deleted) during which he asked the deceased how she would end her life, to which she replied, "morphine." 4. On 24 February 2012 the deceased and the offender, Dr Rowan Godwin, commenced an intimate relationship. In that year the deceased moved from her premises in (place name deleted) to reside with the offender in (place name deleted). 5. In January 2013 the offender purchased a home at (address deleted) where he and the deceased continued to reside together. At this time the deceased was receiving chemotherapy and radiotherapy. The cancer, however, began to spread across her skin, up her neck and onto her chest. This caused problems with movement, nerve pain, and difficulty breathing and swallowing. 6. The relationship between the deceased and the offender has been described in very positive terms by members of the deceased's family, including her children and her mother. 7. On the morning of 22 July 2014, the deceased's mother, children and grandchildren attended (address deleted) … The offender was also present. The purpose of the gathering was for the deceased to spend quality time with her family and say goodbye. 8. The deceased was bedridden, but spent time with her children, her mother and other family members. During the gathering, the deceased gave directions for the funds of one of her bank accounts to be distributed to her three children. She spoke openly about her Will and gave very specific instructions to her children about lodging tax returns and managing her property at (place name deleted). 9. The guests left the premises at around 5.00pm, leaving the deceased and the offender at the home. 10. At 11.14pm that night the offender placed a call to Emergency Services. He told the Operator that his terminally ill wife told him to leave the house, and upon his return he had discovered she had killed herself. 11. At 11.15pm ambulance officers arrived … at the (place name deleted). They observed the deceased with a butterfly needle in her right arm connected to a cannula with a bag of fluids. 12. At 11.30pm police arrived on scene. They spoke with the accused, who told them that at around 9.30pm the deceased told him to go out and get some groceries. He said that when he returned at around 11.15pm he found her dead. The accused showed police the laptop computer which belonged to the deceased. He opened a file on the desktop which was headed "Letter to Police". The letter read, in part: To the police dept This is my last note to the living world. I am taking my life today. no one has helped me or encouraged me in any way. I am a nurse practitioner who is very clear about my medical case and prognosis…My cancer is aggressive, incurable, and is strangling my throat daily…My future would be short and much more painful if I did not take this option. As legal euthanasia is not possible in Australia I have been forced to make this decision and implement it. I make and implement my death myself, logically and without assistance, it is the only option a sane person would make…Over the last months I have talked calmly and objectively about euthanasia with my palliative care team, oncologist, GP and family. Alone I have prepared a death plan for over 2 yrs. I accessed what I needed during that time and told no one of how or when I would implement my death… Dying under my own control is my best option. This is an act of strength and control, not weakness…I had so much love…I was so lucky. (Name deleted)(Patient A) 13. On 24 July 2014 Dr Brian Beer conducted an autopsy on the deceased's body at the Newcastle Department of Forensic Medicine. Dr Beer indicated that the direct cause of death was opiate toxicity. He also noted that the deceased was suffering from metastatic breast carcinoma. Toxicology analysis revealed that the deceased's body contained levels of morphine in the lethal-toxic range. 14. On 17 October 2014 the offender was interviewed by police. The offender told police that that he did not know from where the deceased had obtained the morphine. He denied putting a drip in the deceased's arm before leaving the premises. 15. On 7 November 2014 police advised Dr Beer that they were satisfied that the death of the deceased was the suicide of a terminally ill woman and that the offender did not assist in her death. 16. In 2015 the offender commenced a relationship with (name deleted). This relationship ended in December 2017. 17. On 11 December 2017 (name deleted) approached police and told police that the offender had made admissions to her in relation to the deceased's death. 18. At this point police commenced a criminal investigation into the accused's involvement in the deceased's death. On 12 February 2018 police obtained a Surveillance Device Warrant. On 14 February 2018 (name deleted) attended Gosford Police Station and participated in an interface, or "pretext", telephone conversation with the offender. During that conversation, the following exchanges took place: OFFENDER: They [his family] all know that I was there when she died. (Name deleted): But they don't know that in the end you had to hold her nose and--- OFFENDER: No, no-one knows. No-one knows that. (Name deleted): Okay. OFFENDER: They all know that I, I helped her kill herself. But I know…helped put the drip up, I helped load the morphine, they all know what…the morphine, they know all that. But that, that in itself is enough to convict me… OFFENDER: It didn't go as we planned, it took a lot longer than it was meant to. We had it all planned out what I'm to do, and…the drip would not go through… (Name deleted): Why did you go for a walk to the beach? Like you said to the police you went for a walk to the beach and you didn't. Why did you do that? OFFENDER: …because I had to pump the morphine through…so I had to sit there and squeeze the bag…and that took about three-quarters of an hour…she hadn't really planned it all that well. I thought she had some sort of drip….she had nothing to put the drip thing on so trying to find something to put the… put it all through, she became unconscious. So then I had to rush out, at one stage it was 11 o'clock. OFFENDER: ….i did this because I had seen her suffer for 2 years, and she had fought very hard for 2 years and she couldn't do it anymore and she wanted…and she also believed it was okay, it's also your choice. (Name deleted): She had contact with palliative care, why didn't you let them, professional doctors…why didn't you let them do it? OFFENDER: Palliative care don't suicide patients, they can't. No-one's allowed to, it's illegal for the moment… OFFENDER: …because I didn't take her life, she did, okay. She did. Had it all organised. She'd organised the drip and the needle. 19. The offender told (name deleted) that upon his return to the house, he located the deceased unconscious and brain-dead however still taking occasional breaths. The offender admitted to holding the deceased's mouth and nose for about 30 seconds. The deceased stopped breathing soon after this, and the offender then contacted Emergency Services. 20. On 22 February 2018, the offender was arrested and charged with the matter before the Court. 1. In his evidence before the Tribunal, Dr Godwin explained what happened in more detail. Dr Godwin knew Patient A had an "exit bag" but she would not let him touch it. Around 20 July 2014, Patient A told Dr Godwin she had some morphine but asked him whether she could take some more from his supply. Dr Godwin had five ampoules of morphine as part of an emergency supply that he had ordered in January 2014. He did not record in his log book that he had given that morphine to Patient A. 2. On the evening of 22 July 2014, after watching a TV show and having a cup of tea, Patient A told Dr Godwin that it was time. Dr Godwin says that he was surprised because he thought they might have one more night together. Patient A emptied the "exit bag" on the bed. It contained a bag of fluid, morphine and a drip line. Patient A started loading the morphine into the bag, but did not have a stand to hang the bag on. Dr Godwin found a broom to hoist the drip above Patient A's head and began loading the morphine into the drip bag. Patient A only had a tiny butterfly needle. Dr Godwin put a cannula into Patient A's elbow and started pumping the morphine through the drip. According to Dr Godwin, "that was the start of the chaos". 3. Dr Godwin said that the drip would not go through. It took him about 45 minutes to pump the fluid through because he had to sit there and squeeze the bag. Patient A's plan was for Dr Godwin to leave the house around 9.30 pm and go grocery shopping so that he could obtain a receipt showing that he was not there when she died. Because it took so long to pump the morphine through, he did not leave the house until shortly before 11 pm. His intention was to return and find that Patient A had died peacefully. However, when he came back less than half an hour later, in Dr Godwin's words, Patient A was "unconscious, with fixed and dilated pupils, so effectively brain dead". Dr Godwin acknowledged that Patient A "did take a few short reflexive agonal gasps", however he would not describe her state as "alive and breathing". 4. Dr Godwin put his hand over Patient A's mouth and nose for up to 30 seconds, so that she could die peacefully. Dr Godwin says he could not hold his hand there for long as it was too much for him emotionally. He says Patient A continued to take breaths intermittently for some minutes after he had removed his hand. When she stopped breathing at approximately 11.15 pm, Dr Godwin called for an ambulance. Dr Godwin told ambulance officers and NSW Police officers that he had not been involved in Patient A's death. 5. On 17 October 2014, Dr Godwin participated in a formal interview with police. He said he left the house at about 10.30 pm and when he came back, he found that Patient A had died. He denied that he had put a needle in Patient A's arm or that the drip was connected when he left. When questioned further about whether Patient A could have put the drip in her right arm by herself, Dr Godwin told police officers that she had taken her own blood before and it was not hard to do. The coroner conducted an autopsy but dispensed with an inquest. Complaint One - conviction of a criminal offence 1. Under s 144(1)(a) of the National Law, a complaint may be made that a registered health practitioner has "been convicted of ... an offence". On 19 December 2018 at Gosford Local Court, Dr Godwin was convicted of the offence of aid or abet suicide/attempted suicide of another. He was sentenced to 12 months imprisonment to be served by way of an intensive corrections order. The relevant circumstances of the offence are set out at 2.1 of Complaint One. They are that Dr Godwin: a. resided with Patient A who had been given a cancer diagnosis in about 2006 and was terminally ill in 2014; b. was aware sometime in the preceding six months or so that Patient A intended to take her own life; c. was aware on or immediately prior to 22 July 2014 that Patient A intended to take her own life on 22 July 2014; d. on about 22 July 2014 agreed to assist Patient A to take her own life; e. on 22 July 2014 set up a drip and cannula into Patient A and loaded morphine into the drip, including from his supply, which would be administered to Patient A to end her life; f. when the morphine did not flow through the drip the practitioner manually pumped or squeezed the morphine bag through to Patient A; g. waited until Patient A become unconscious and then left Patient A and the premises in which they were staying, intending to return to find her deceased; h. returned to Patient A about 15-30 minutes later to find that Patient A was alive, was taking breaths and was unconscious; i. [withdrawn] j. held his hands over Patient A's nose and mouth for up to 30 seconds, to stop Patient A breathing and end her life; k. upon being of the view that Patient A was deceased, the practitioner called emergency services to report the death of Patient A. 1. Dr Godwin admits that he was convicted of the offence of aid or abet suicide. He adds the following comments and clarifications to the circumstances outlined above. Firstly, Dr Godwin would not say that Patient A "was terminally ill in 2014". We accept that Patient A had had some periods of remission since her initial diagnosis, but we do not understand there to be any dispute that Patient A was terminally ill throughout 2014. In a statement to police dated 10 July 2018, one of Patient A's sons wrote that: She received a Terminal illness diagnosis and the reason I know this is because she was able to withdraw her superannuation under the terminal illness condition of release. Meeting this condition requires a terminal illness diagnosis (less than 24 months life expectancy) by two independent medical practitioners. 1. Although Patient A's son did not say when his mother was given that diagnosis, it is apparent that throughout 2014 Patient A had considerably less than 24 months to live. Indeed, the Statement of Agreed Facts prepared for the purposes of the criminal proceedings, states that at the time of death Patient A was "terminally ill with only weeks to live". 2. Secondly, Dr Godwin says that it is "not correct to say that I was aware that, or how, she planned to take her own life for six months prior". According to Dr Godwin, Patient A's plan only became known to him shortly before her death when she became very ill. However, the complaint states that Dr Godwin was aware "sometime in the preceding six months or so that Patient A intended to take her own life". He does not deny that assertion. In oral evidence, Dr Godwin said that Patient A told him in 2012 that she planned to take her own life without involving others and at a time of her choosing. Whether Dr Godwin became aware of Patient A's intention days or months before 22 July 2014, is not material. 3. Apart from the existence of the "exit bag" and the statement to one of her adult children that she intended to use morphine, we find that Patient A did not tell anyone exactly how she planned to take her own life. Patient A had stockpiled some equipment but her plan was not well organised. For example, she did not have a stand on which to put a bag and she only had a tiny butterfly needle. Patient A and Dr Godwin discussed the supply of morphine two days previously and Dr Godwin would have known at least by then that Patient A intended to inject herself with morphine. 4. Thirdly, Dr Godwin provides the following clarification in relation to the allegation in Complaint 2.1(c) that he was aware "on or immediately prior to 22 July 2014 that Patient A intended to take her own life on 22 July 2021". He says he became aware on 22 July that Patient A intended to take her own life on that day. We accept that evidence. Dr Godwin did not know for sure until 22 July that she intended to take her life that evening. He had thought that she might wait until the following day. 5. Fourthly, while Dr Godwin agreed to assist Patient A to take her own life, he only did so after she had started making the preparations. In Dr Godwin's words, "I did not plan anything with her sometime or immediately prior, nor was I ever involved in the planning. I was simply there." Dr Godwin made a much more detailed statement to his former partner in the pretext phone call recorded in the Agreed Statement of Facts outlined above at [7](18). In that phone call, Dr Godwin said, "It didn't go as we planned, it took a lot longer than it was meant to. We had it all planned out what I'm to do, and…the drip would not go through…" We accept that Dr Godwin was not involved in the planning before the evening of 22 July 2014, apart from providing Patient A with morphine from his own supply. However, on that evening, when it became apparent to both of them that Patient A could not manage on her own, they planned what he would do. 6. Dr Godwin admits that he loaded morphine into the bag, inserted a cannula into Patient A's elbow and manually pumped the bag with his hands. He assisted because he "realised the morphine would never flow and her plan could be badly botched". 7. Fifthly, when he returned from the supermarket, Dr Godwin described Patient A's pupils as "fixed" and "dilated" and maintained that she was "effectively brain dead". He added that she took "a few short reflexive agonal gasps" but he would not describe her state as "alive and breathing". We accept that evidence. 8. Sixthly, Dr Godwin denies that he held his hand over Patient A's face until she stopped breathing. His version is that he panicked and put his hand over Patient A's mouth and nose so she could pass away peacefully. But he says that he could not hold his hand there as it was too much for him emotionally. The Agreed Statement of Facts set out at [7] above states that Dr Godwin admitted that he held his hand over Patient A's mouth and nose "for about 30 seconds". The complaint, which Dr Godwin has admitted, says "up to 30 seconds". In his words, "She then continued taking breaths intermittently for some minutes until she stopped." We accept that evidence. It is not alleged that placing his hand over Patient A's nose and mouth was the cause of death. The results of the autopsy was that the cause of death was "opiate toxicity". 9. Complaint One is a recitation of the criminal conviction and the factual circumstances that led to that conviction. Dr Godwin admits it on that basis and we find it to have been proven. We note that the Commission is not alleging that "the circumstances of the offence render the practitioner unfit in the public interest to practise" medicine: National Law, s 149C(1)(c). Complaint Two 1. Complaint Two was withdrawn. Complaint Three – particulars of Complaint One and not telling the truth to police is unsatisfactory professional conduct Particulars of the complaint 1. Complaint Three is that Dr Godwin is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. The particulars of Complaint One are repeated and relied on. Those particulars outline Dr Godwin's involvement in assisting Patient A to suicide and are relied on as an instance of "improper or unethical conduct". The further particulars are that: 2. On and from 22 July 2014 through to 2018, including during his interview with NSW Police on 17 October 2014, the practitioner positively stated and/or maintained the following falsehoods, knowing they were false and/or misleading, when communicating to police officers and ambulance officers about the circumstances of Patient A's death: a. that he did not assist Patient A to commit suicide; b. that when he left Patient A's side on 22 July 2014, she did not have a cannula in her arm and did not have a drip; c. that Patient A might have self-inserted the drip and cannula into her arm and that he did not do so; d. that he did not know what drugs were used in Patient A's drip; e. that Patient A did not inform the practitioner that she would be taking her own life prior to him leaving the premises; f. that when he returned to Patient A and the premises she was deceased and in the same condition as when ambulance officers arrived. Examples of false statements 1. When officers from the NSW Ambulance Service attended the house, Dr Godwin told them he had gone out to get groceries and when he came home, she was deceased. Sergeant Annie De Vere-Bertles attended the house. She says Dr Godwin, "hastily explained he was out shopping" and showed her "several plastic bags containing grocery items and held out a receipt . ." 2. Dr Godwin told Senior Constable Clark that he "knocked the drip bag to the floor as he rushed toward her suspecting by her appearance that she was deceased". Dr Godwin admitted that, in fact, the drip bag was on the ground or on the bed where it had been left. Detective Senior Constable Fuchs also provided a statement reporting that Dr Godwin had told him that he did not know what drugs were used in the drip or where Patient A would have obtained them. Finding 1. As Dr Godwin has admitted the entirety of Complaint Three, it is not necessary to conduct a detailed inquiry: National Law, s 165H. Dr Godwin admits his involvement in Patient A's suicide as outlined in Complaint One, subject to the comments and clarifications outlined above which are not material. He also admits that he did not confess to his involvement either on 22 July 2014 or when interviewed by police in October 2014. 2. Dr Godwin also admits that his conduct in committing the offence and in giving various people false information, amounts to "improper and unethical conduct relating to the practice of medicine." There is no dispute that this is unethical conduct or that it relates to the practice of medicine. That conduct comes within the definition of unsatisfactory professional conduct: National Law, s 139B(1)(l). We find this complaint to have been proven. Complaint Four – providing medical care and treatment to a person in a close personal relationship is unsatisfactory professional conduct Particulars of the complaint 1. Complaint Four is that Dr Godwin is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that he has: i. engaged in conduct that demonstrates the 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. 1. The particulars are as follows: 1. The practitioner inappropriately provided medical care and treatment to Patient A on 22 July 2014 as set out in Complaint One including in circumstances where he was in a close personal relationship with Patient A, contrary to 3.14 of the Medical Board of Australia's 'Good Medical Practice – Code of Conduct' ("the Code"). 2. The practitioner inappropriately prescribed schedule 8 and schedule 4D medications (under the Poisons and Therapeutic Goods Regulation 2008) to Patient A on the dates and in the quantities set out in Appendix A in that he did not undertake an appropriate and systematic assessment of Patient A prior to prescribing the medications. 3. The practitioner inappropriately prescribed the medications in Appendix A to Patient A, who he was in a close personal relationship with, in circumstances where: a. the practitioner prescribed schedule 8 medications to Patient A without the knowledge of or prior consultation with Patient A's primary treating practitioners; b. the prescribing was not unavoidable or required in an emergency; c. Patient A had a primary general practitioner who could prescribe the medications for Patient A; d. the prescribing was contrary to his obligations under 3.14, 4.4 and 4.5 of the Code. 4. From about May 2012 to July 2014 the practitioner inappropriately investigated and treated Patient A's medical conditions in circumstances where: a. the practitioner and Patient A were in a close personal relationship; b. the care and treatment was not undertaken in an emergency setting or in circumstances where Patient A did not have access to her regular general practitioner; c. the practitioner's actions were contrary to his obligations under 3.14, 4.4 and 4.5 of the Code. Summary of Dr Godwin's response 1. Dr Godwin's clinical notes for Patient A record the many scripts he wrote for pain relief, sleeping medication and antibiotics. He also took biopsies and ordered blood tests. Dr Godwin accepts that he was in a close personal relationship with Patient A and acknowledges that it was inappropriate to provided her with medical treatment. However, he says that the conduct does not amount unsatisfactory professional conduct as defined in 139B(1)(a) and/or (l) of the National Law. The basis for that submission is that being in a close personal relationship with Patient A does not automatically mean that he is guilty of unsatisfactory professional conduct. He submits that he was not Patient A's treating doctor and was motivated by a desire to make life easier for her. Code of Conduct 1. On 2 December 2014, the Medical Council of NSW published a guideline which supplements the Medical Board of Australia's Code of Conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia, 2014). So far as is relevant to these proceedings, the "Guideline for self-treatment and treating family members" states that: BACKGROUND The Medical Board of Australia's Code of Conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia, 2014) sets out the expectations of medical practitioners with regards to treating themselves and those with whom they have a close personal relationship. … Section 3.14 – Personal Relationships "Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues". Noting that all Australian medical practitioners are expected to practice in accordance with the Medical Board of Australia's Code of Conduct, the Medical Council of New South Wales (the Council) supplements the above with the following: Wherever possible, medical practitioners should not treat themselves and members of their family, because in these circumstances: Professional objectivity may be compromised and their judgment may be influenced by the nature of their relationship with the patient; Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination; The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination when the medical practitioner is a family member; Patient autonomy may be compromised when a medical practitioner treats a member of their family; The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family. … GUIDELINE The Council endorses the Medical Board of Australia's Code of Conduct's guidance in relation to self-treatment and treating family members. In addition, the Council endorses the following general principles: 1. ... 2. Medical practitioners should not initiate treatment (including prescribing) for themselves or members of their family. 3. In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available. 4. Medical practitioners should not serve as primary or regular care providers for members of their family, although there are circumstances in which they may work together with an independent medical practitioner to maintain established treatment. 5. … 6. … 1. The Commission also relies on 4.4 and 4.5 of the 2014 Code of Conduct. Those sections relate to team work and co-ordinating care with other doctors. 4.4 Teamwork Most doctors work closely with a wide range of healthcare professionals. The care of patients is improved when there is mutual respect and clear communication, as well as an understanding of the responsibilities, capacities, constraints and ethical codes of each other's professions. Working in a team does not alter a doctor's personal accountability for professional conduct and the care provided. When working in a team, good medical practice involves: 4.4.1 Understanding your particular role as part of the team and attending to the responsibilities associated with that role. 4.4.2 Advocating for a clear delineation of roles and responsibilities, including that there is a recognised team leader or coordinator. 4.4.3 Communicating effectively with other team members. 4.4.4 Informing patients about the roles of team members. 4.4.5 Acting as a positive role model for team members. 4.4.6 Understanding the nature and consequences of bullying and harassment, and seeking to eliminate such behaviour in the workplace. 4.4.7 Supporting students and practitioners receiving supervision within the team. 4.5 Coordinating care with other doctors Good patient care requires coordination between all treating doctors. Good medical practice involves: 4.5.1 Communicating all the relevant information in a timely way. 4.5.2 Facilitating the central coordinating role of the general practitioner. 4.5.3 Advocating the benefit of a general practitioner to a patient who does not already have one. 4.5.4 Ensuring that it is clear to the patient, the family and colleagues who has ultimate responsibility for coordinating the care of the patient. 1. Under s 41 of the National Law, the Code of Conduct "is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession". Sections 3.14, 4.4 and 4.5 of the 2014 Code of Conduct are evidence of what amounts to professional conduct by general practitioners. Medical care and treatment on 22 July 2014 1. The factual allegation in particular 1 is that Dr Godwin inappropriately provided medical care and treatment to Patient A on 22 July 2014 including in circumstances where he was in a close personal relationship with her, contrary to 3.14 of the 2014 Code of Conduct. That care and treatment, as set out in Complaint One, is that Dr Godwin: set up a drip and inserted a cannula, loaded morphine into the drip, manually pumped or squeezed the morphine bag, waited for Patient A to become unconscious, left the house, returned to the house to find that Patient A was taking breaths but was unconscious, held his hands over Patient A's nose and mouth to stop her breathing and end her life. 2. Dr Kertesz, the independent expert who provided evidence for the Commission, expressed the following view about this conduct: The calculated and dedicated aspects of this "suicide assistance" to Patient A by Dr Godwin in his involvement, treatment and end of life treatment leads me to state that this management is of a level below that expected of a practitioner of equal training and experience and that the level of the management is significantly below. 1. Dr Kertesz adhered to this opinion during cross-examination noting that there are significantly kinder ways to terminate a person's life than by putting a hand over their mouth. For example, if other medications were available and the drip was still inserted, that may have been a kinder way to end Patient A's life. 2. We accept Dr Godwin's account that his initial motivation was to stop Patient A breathing and end her life. However, he removed his hand after less than 30 seconds and Patient A continued to take breaths intermittently for some minutes. Holding his hand over Patient A's nose and mouth was not the cause of death. That means that Dr Kertesz's opinion that it was "unkind" to terminate Patient A's life in that way, is not based on the facts. 3. Dr Godwin accepts that doing the things listed in Complaint One amounts to "inappropriate treatment" regardless of whether he was in a close personal relationship with Patient A or not. He admitted that his treatment of Patient A in assisting her to suicide on 22 July 2014, amounts to unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. (Complaint Three, particular 1.) That conduct meets the definition of "improper or unethical conduct" in s 139B(1)(l) because it is unlawful for a person to aid and abet the suicide of another. By definition, the treatment was inappropriate. We are not persuaded that the same conduct separately amounts to unsatisfactory professional conduct because he was in a close personal relationship with Patient A. Regardless of the relationship, this conduct was improper and unethical. 4. However, we are persuaded that the same conduct separately amounts to unsatisfactory professional conduct on the basis that it demonstrates that the "care" Dr Godwin provided is significantly below the standard reasonably expected of a practitioner of the same level of training and experience: National Law, s 139B(1)(a). As we have said, we disagree with Dr Kertesz's opinion that placing his hands over Patient A's mouth was a cause of Patient A's death or that it led to unnecessary suffering. However, we agree with him that, overall, the aspects of medical assistance Dr Godwin provided to Patient A on 22 July was significantly below the relevant standard. This particular is proven. Prescribing S8 and S4D medications without adequate assessment 1. The second particular is that Dr Godwin inappropriately prescribed S8 and S4D medications to Patient A without undertaking an appropriate and systematic assessment. 2. Medicines and poisons are classified into schedules according to the level of control over the availability of these substances. Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) lists Schedule 4 substances (prescription-only medicines) which are strictly controlled. They are referred to under the Regulation as "prescribed restricted substances" or Schedule 4 Appendix D (S4D) medicines. Schedule 8 (S8) medicines are "controlled substances" which have a high potential for abuse and addiction. The possession of these medications without authority is an offence. 3. Between 10 October 2012 and 18 July 2014, Dr Godwin prescribed S8 and S4D medicines to Patient A on 37 occasions. The S8 drugs were oxycodone (under the brand name Oxycontin or Endone) and oxycodone together with naloxone (under the brand name Targin). The S4D medication was temazepam (under the brand name Normison). 4. From October 2012, until the time of her death, Patient A had a team of medical practitioners supporting her. She had a general practitioner, Dr Norrie, who was a university friend of Dr Godwin, oncologists (Dr Livshin, Dr Aroney and Dr Lumba). Discussions with those practitioners and specialists continued to take place at appointments, some of which Dr Godwin attended. A palliative care team also had limited involvement. 5. Dr Godwin denies that he failed to do a systematic assessment of Patient A before prescribing these medicines. He says he was in a position to make constant assessments of Patient A's pain and discomfort at the time he prescribed the medications. He added that he is not aware of what additional assessments he could have done: The treatment I provided was not directed towards the care provided by her oncologists or her palliative care team, it was directed at making her life easier to live, day to day. The medication I prescribed was not controversial, or unusual in the treatment of cancer. I am not sure what additional systematic assessment I could usefully have done that would have either justified the medication prescribed or contra-indicated it. … I accept I did not make specific records of my assessments. 1. If he did not adequately assess Patient A, Dr Godwin says it was either not necessary to do so or Patient A could assess her own pain. According to Dr Godwin, it was not necessary because Patient A was under the care of specialists who had already assessed her and discussed these medications with her. 2. Patient A was a skilled nurse practitioner who, in Dr Godwin's view, had a good understanding of her own condition and her own medication needs. He thought it was appropriate in the circumstances to prescribe what he refers to as "standard medications for appropriate therapeutic purposes". 3. Dr Godwin admits that he did not make any records of his assessments of Patient A. Dr Kertesz observed that Dr Godwin's notes did not record any appropriate or systematic assessment of Patient A prior to prescribing these medications. He considered that conduct to be significantly below the relevant standard. In his 1 November 2021 report, Dr Kertesz wrote that: Dr Godwin's failure to identify and record specific timely and appropriate assessments of [Patient A's] terminal status to enable palliative care givers to identify [Patient A's] specific needs and changes in her condition, render his behaviour to be below the standard expected of a practitioner of equivalent experience and training. This conduct being significantly below that standard. 1. We do not accept that Dr Godwin was "constantly assessing" Patient A in the same way that an independent treating doctor would have assessed her. We acknowledge that Patient A had been assessed on occasions by her treating doctors, but Dr Godwin was writing the vast majority of scripts for S8 and S4D medicines. In those circumstances, he was obliged to undertake a thorough, regular and independent assessment of her state of health and the appropriateness of those medicines. He did not do so. Even though Patient A was a nurse practitioner, her own self-assessment is not a substitute for an objective assessment by a treating doctor. We find this particular to have been proven. It amounts to unsatisfactory professional conduct as defined in s 139B(1)(a). Prescribing S8 medicines when in a close personal relationship 1. In summary, particular 3 is that Dr Godwin inappropriately prescribed S8 medications when he was in a close personal relationship with Patient A and without the knowledge of, or prior consultation with, Patient A's primary treating practitioners. The prescribing was not urgent and Patient A's general practitioner could have prescribed the medication. In those circumstances, the prescribing was contrary to 3.14, 4.4 and 4.5 of the Medical Board of Australia's Code of Conduct. 2. Dr Godwin understands that it is not advisable to prescribe S8 (or S4) medicines to people with whom the doctor has a close personal relationship. He knows that the risks are that the doctor's professional judgment will be clouded and continuity of care can be disrupted. However, he does not believe that either of these things happened when prescribing Patient A with medications for pain relief. In his view, if he had not prescribed those medications, her treating doctors would have done so. Patient A and her family appreciated what Dr Godwin did and he is sure that it improved her quality of life and helped her stay positive. In Dr Godwin's view, in all the circumstances it was appropriate for him to prescribe these pain medications for Patient A. 3. From May 2012 to July 2014, Dr Godwin wrote all scripts for S8 pain relief medicines, apart from one. He says he did not initiate these medications, he merely provided "maintenance scripts". He claims Patient A's specialists, not him, made the decisions about what she should take. 4. Patient A was not formally linked up with the local palliative care team but recorded the pain relief medications she was taking in a referral letter to Dr Norrie dated 8 November 2012. At that stage, Patient A was being prescribed oxycodone IR (Endone) 5mg noting that she takes approximately four per day. The letter also mentions that she has just started taking pregabalin 75mg bd and 100mg of aspirin. Dr Norrie wrongly thought the palliative care team was providing Patient A with pain medications. In his words: "[Patient A] was an incredibly brave patient coping with painful mestastic breast cancer. She was under the care of the Palliative Care Team and I was of the belief that they were managing and providing her pain medications. Her Oncologist Dr Sumit Lumba alluded to this in his letter 12/5/14. I believe that as a Doctor, husband and carer to [Patient A] that Doctor Godwin would have tried to assist her through the medical treadmill of Doctors appointments and Hospital visits. He would have acted as an extra set of ears and understanding in her medical management. As her carer, he would have assisted in her health care as she was so debilitated by her serious and terminal condition. 1. Dr Norrie referred Patient A to specialists, and received regular correspondence from them in 2013 and 2014. For example, on 25 September 2013, Dr Sally Carr, a Staff Specialist in Palliative Medicine, wrote to Dr Norrie outlining Patient A's history, symptoms, treatment, the medications she was taking and her reactions to those medications. Dr Carr also documented Patient A's thinking about ending her own life. Dr Carr recommended that Patient A recommence pregabalin, a treatment for nerve pain. Dr Norrie did not implement these recommendations because he saw Patient A on very few occasions. Dr Godwin was writing most of the scripts. 2. A member of the palliative care team, Dr David MacKintosh, reviewed Patient A at home on 7 March 2014. The purpose of the visit was to improve pain relief. He confirmed in a letter of 4 November 2019, that he had not prescribed her with any medications but did advise that the "current dose of Oxycontin, 15mg bd, is small and can be titrated upwards". He also recommended adding amitriptyline to the pregabalin. Dr Godwin was not present at this visit. 3. Patient A was admitted to hospital on 12 July 2014 and discharged two days later. The hospital discharge referral notes include a plan to change the medication and liaise with the palliative care team for at home oxygen therapy. It is critical for a patient's general practitioner to have this information so that he or she could speak to the patient, prescribe the recommended medication and liaise with the care team. That did not happen in this case because Patient A was not seeing Dr Norrie regularly. 4. Dr Godwin acknowledges that there is no record of him telling Patient A's treating doctors that he had prescribed Endone in 2012. He does not recall which of Patient A's doctors told him what dose of Endone Patient A should be taking. When asked why he prescribed 15mg of MS Contin, Dr Godwin said he thought, by then, there would have been some communication with the oncologist. He insisted that he only wrote scripts which had been started or recommended by Patient A's treating doctors. 5. That evidence is not consistent with the individual prescribing history for Patient A supplied by the Department of Health. Her first oncologist, Dr Livshin, had not prescribed Endone or oxycodone. Dr Godwin said he was "pretty confident" that someone else told him the relevant dose of oxycodone (Endone) for Patient A. However, he admitted that he probably did not discuss the scripts for oxycodone with Dr Livshin. 6. Dr Aroney took over as Patient A's oncologist on 18 December 2012. To the best of Dr Aroney's recollection, his only communication with Dr Godwin was during consultations with Patient A. He has no recollection of Dr Godwin prescribing any S8 or other medications for Patient A. Dr Godwin does not remember whether he ever told Dr Aroney or the palliative care team that he was prescribing S8 medicines. He agreed that his statement to the contrary was not correct. Dr Godwin cannot recall discussing Patient A's level of pain with Dr Aroney or with any other practitioner in the first three months of 2013. 7. Dr Godwin says that it was his understanding that Patient A's doctors were aware that he was writing scripts, but he accepts that they may not have had a good idea that he was prescribing pain medication. When questioned further, Dr Godwin admitted that he did not tell Dr Norrie about the scripts he was writing at the time, but would have told him about them when he went to a consultation with Patient A. If he was not there, Patient A would have told Dr Norrie. After further questioning, Dr Godwin agreed that Patient A's doctors were not aware that he was writing prescriptions for her. 8. Dr Godwin now realises that ordinarily in Patient A's circumstances, her general practitioner would be communicating with the palliative care team about how the patient was responding to the medication, and what adjustments may be necessary. But Dr Godwin regarded Patient A's circumstances as a "special case" because she was the one who was telling the palliative care team what was happening. 9. Dr Godwin prescribed S8 medicines to Patient A without the knowledge of or prior consultation with Patient A's primary treating practitioners. The prescribing was not unavoidable or required in an emergency. We accept that by prescribing Patient A with pain medication, Dr Godwin was making her life easier. It was more convenient for him to write the scripts than for her to contact her general practitioner either by phone or in person. That may have involved unnecessary journeys when Patient A was in pain. However, until April 2014, Patient A was still working in a medical practice and could have asked any of the general practitioners at work to write her scripts for pain relief. Dr Godwin acknowledged that after that, it would have been easy for him to contact Patient A's general practitioner, Dr Norrie, and ask him to write the scripts for pain relief. 10. Patient A was also sensitive about scarring on her body from radiotherapy. While Patient A may have preferred Dr Godwin to write scripts for her, the fact remains that the prescribing was not unavoidable or required in an emergency. 11. For just over a month between 31 March and 2 May 2014, Dr Godwin did not write any scripts for pain relief. Before that, he had been writing scripts every week or two. He said that Endone was given "as required" and that he increased the dose as "things were getting bad". Dr Godwin agreed that normally the palliative care team would recommend appropriate dosage to the patient's general practitioner. However, he did not agree that the absence of that line of communication impacted on Patient A's quality of care. Ultimately Dr Godwin acknowledged that he must have lost some objectivity although he says he tried to stay out of any clinical management decisions or plans. 12. Dr Kertesz's opinion is that Dr Godwin's conduct in prescribing over and above that of Patient A's usual medical practitioners for reasons of being a "supportive partner" and providing "maintenance scripts" is significantly below the relevant standard. He held to that view emphasising that Dr Godwin did not write scripts in one off or urgent situations. Dr Kertesz does not consider that convenience or a desire to save Patient A from the embarrassment of revealing the scarring on her body to be mitigating factors. He said, by way of example, that there are convenient alternatives including home visits by nursing staff and scripts being provided by email. 13. In our view, Dr Godwin was operating independently with very little communication with other treating doctors. While his intentions were good, the fact that he was in a close personal relationship with Patient A meant that he lacked objectivity. He is in breach of sections 3.14 and 4.5 of the 2014 Code of Conduct. We find this particular to have been proven. Investigating and treating Patient A's conditions 1. In summary, Particular 4 is that for over two years, from May 2012 to July 2014, Dr Godwin inappropriately investigated and treated Patient A's medical conditions. Altogether, Dr Godwin initiated pathology tests, including biopsies, on ten occasions with results being copied to general practitioners and specialists. He was in a close personal relationship with Patient A, the care and treatment was not urgent and the conduct was contrary to sections 3.14 and 4.5 of the Code of Conduct. 2. When their relationship commenced in 2012, Dr Godwin was not treating Patient A. However, within about 6 weeks, Patient A developed a nodule on her back. By June 2012, it had become very painful. She also had pain in her neck. On 16 June 2012, Dr Godwin did a biopsy of two lesions and when he received the results, he sent them to her general practitioner. Patient A also took the results to her oncologist. Dr Godwin had no further role in her management at that stage. Towards the end of 2012, Patient A had chemotherapy and radiotherapy but they were not effective. Dr Godwin did not consider himself to be her treating doctor at the time. In his mind, he was providing test results, rather than medical care. He referred the pathology results to Patient A's treating oncologists and general practitioner. 3. In retrospect, Dr Godwin acknowledges that during the second half of 2012, he was providing medical care to Patient A including by ordering various pathology tests. However, he does not consider this conduct to be significantly below the relevant standard or unethical. He says he is appropriately trained and skilled in identifying skin cancers. He claimed that the fact he was in a close personal relationship with Patient A did not mean that he lacked objectivity. 4. Dr Godwin says he corresponded with Patient A's treating doctors as the need arose. However, when questioned about that statement he agreed that there was no written correspondence, just three letters of referral. 5. Dr Kertesz's opinion was that Dr Godwin's treatment and care of Patient A contravenes the recommendations and guidelines of the NSW Medical Board and the Medical Board of Australia. That conduct is below the relevant standard. We agree. It is also unethical and in breach of his obligations under sections 3.14 and 4.5 of the Code of Conduct. We find Particular 4 to have been proven. Complaint Five – record keeping Particulars of complaint and Dr Godwin's response 1. Complaint Five is that Dr Godwin is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) ("the Regulations"). The particulars are that: 1. Contrary to clauses 1(2)(a) and (b), 1(3), and 2 of the Regulations the practitioner failed to record an adequate level of detail for his prescribing to Patient A as set out in Appendix A including: a. information or advice given to Patient A; b. his assessment of Patient A; c. Patient A's complaints to him and/or conditions warranting his prescriptions. 2. Contrary to clause 1(3) of the Regulations the practitioner failed to record all relevant information or advice he gave to Patient A from June 2012 to July 2014. 3. Contrary to clause 1(2)(d) and (2) of the Regulations the practitioner failed to record all the prescriptions he gave to Patient A as set out in Appendix A. 4. Contrary to clause (2) of the Regulations the practitioner failed to maintain an adequate level of detail for his record of Patient A from June 2012 to July 2014. 1. Overall, Dr Godwin admits that his records should have been more detailed and that they were not strictly in accordance with the required standards. In his defence, he says that his prescribing records were not about managing Patient A's cancer but about managing her pain. Dr Godwin maintains that he was not Patient A's primary treating doctor, however he wrote the vast majority of scripts for pain relief and some other medications including antibiotics and sleeping pills. He accepts the criticism that his prescribing records are not strictly in accordance with the required standards. We understood this statement to be an admission, but only in relation to Particular 3. Record keeping requirements 1. Clauses 1 and 2 to Schedule 2 of the Regulations provide as follows: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. … 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 1. At the time, the Regulations imposed a mandatory obligation on a medical practitioner to keep a record for each patient and to include the information set out above. 2. Dr Kertesz did not agree that the fact that Patient A had a team of treating practitioners throughout this period meant that Dr Godwin's record keeping complied with the Regulations. Particular 1 – failing to record an adequate level of detail for his prescribing 1. On 23 and 27 November 2012, Dr Godwin prescribed the antibiotic cefalexin 500mg to Patient A to treat a secondary infection. He says he told Patient A's treating doctors about the infection, but made no record in his notes of where the infection was or of any discussion with treating doctors. There is no record of any assessment of Patient A before prescribing or any information or advice he gave to Patient A. In March 2013, Dr Godwin prescribed more antibiotics for Patient A (amoxicillin + clavulanic acid) but can't remember why. He did not make any notes about this prescription. There is insufficient information concerning Patient A's case to allow another medical practitioner to continue to manage the patient. 2. Dr Godwin has contravened Cl 1(2)(a) and (b), cl 1(3) and cl 2 of Schedule 2 to the Regulations. That amounts to unsatisfactory professional conduct. Particular 2 – failing to record all relevant information or advice he gave to Patient A 1. Initially Dr Godwin denied that he was Patient A's treating doctor. In those circumstances, he was not providing her with information and advice. Dr Godwin now accepts that by early 2013, he was part of Patient A's treating team. While Patient A did have a general practitioner (Dr Norrie), she rarely saw him. Dr Godwin was treating her and his records needed to comply with the Regulations. 2. During the period from June 2012 to July 2014, those records did not comply with the requirement in Cl 1(3) to Schedule 2 of the Regulations that they include notes as to information or advice given to Patient A. Dr Godwin has contravened the Regulations and is guilty of unsatisfactory professional conduct. Particular 3 – failing to record all the prescriptions he gave to Patient A 1. Dr Godwin admits this particular with the qualification that he was writing scripts in circumstances where the drug treatment regime had been determined by Patient A's specialists. For the reasons we have given, the evidence does not support that assertion. Clause 1(2)(d) requires a practitioner to record the particulars of any medication prescribed for the patient. Dr Godwin kept some records, but they were inadequate. He only recorded approximately half of the prescriptions he wrote for Patient A. For example, on 6 November 2012, Dr Godwin prescribed MS Contin, an S8 drug, to Patient A. Dr Godwin had also prescribed Endone to Patient A on 10 October 2012 but did not make a note of that script. He has no excuse for failing to do so but says he may have written the script by hand at home. He did not include sufficient information to allow another medical practitioner to continue treating Patient A. 2. Dr Kertesz acknowledges that another doctor taking over care for Patient A would not be relying exclusively on the records of Dr Godwin to determine the appropriate medication regime. However, Dr Godwin was prescribing restricted drugs of addiction and he should have made an entry in his records every single time he prescribed them. 3. We find this particular to have been proven. Dr Godwin has not complied with Clause 1(2)(d) and cl 2 of Schedule 2 to the Regulations. That non-compliance constitutes unsatisfactory professional conduct. Particular 4 – failure to provide an adequate level of detail for his records 1. Clause 1(2) of Schedule 2 to the Regulations requires a practitioner to provide certain details in the record. Dr Godwin did not comply with this requirement. For example, in June 2012, Dr Godwin took a biopsy of a lesion on Patient A's shoulder and sent it for pathology testing. He requested that the result be sent to Patient A. On 5 July 2012, Dr Godwin ordered a pathology test. On 6 November 2012, Dr Godwin recorded a consultation with Patient A, but the only details were the date and time, that he was the provider and that the treatment/plan was "MS Contin 15mg Controlled release tablets 1". 2. We find this particular to have been proven. Dr Godwin has contravened the Regulations and is guilty of unsatisfactory professional conduct. Complaint Six – Professional Misconduct Particulars of the complaint 1. Complaint Six is that Dr Godwin is guilty of professional misconduct under s 139E of the National Law in that he 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 1. The Commission repeats and relies on Complaint Three individually and cumulatively. The Commission repeats and relies on the particulars of Complaint Four individually and cumulatively. The Commission also repeats and relies on two or more of the particulars of Complaints Three, Four and Five cumulatively. The Commission does not rely on Complaint One, either individually or cumulatively with other complaints, as a basis for a finding of professional misconduct. Meaning of professional misconduct 1. The gravity of the particular conduct is not to be measured by reference to the worst cases, but rather by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWSC 297. 2. Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen [2017] NSWCA 186 at [20]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. 1. The following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is the characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. the characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration, though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence. 1. Dr Godwin appears to have changed his position on the question of whether his conduct amounts to professional misconduct. In his reply he accepted that his conduct "has been below standard and significantly so in relation to complaint three". In opening submissions, Dr Godwin's counsel said that it was a matter for the Tribunal as to whether Dr Godwin's dishonesty amounts to professional misconduct. In closing submissions she submitted that Dr Godwin's dishonesty does not amount to professional misconduct because there were mitigating circumstances. 2. In our view, Complaint Three, by itself, justifies a finding of professional misconduct. While many people would understand and empathise with Dr Godwin's plight, his actions constitute unethical conduct of a serious kind. Not only did he help Patient A die of suicide but he deliberately gave false information to police to avoid prosecution. He used his knowledge as a doctor to convince investigating police officers that Patient A took her own life without any involvement from him. Overall, his conduct is sufficiently serious to justify suspension or cancellation of Dr Godwin's registration. 3. Complaint Four is that Dr Godwin is guilty of unsatisfactory professional conduct by providing medical care and treatment to Patient A when he was in a close personal relationship with her. For more than two years, Dr Godwin was prescribing S8 medicines to Patient A and treating her in other ways. At the time, and even now, he has limited insight into the risks of treating close family members. He lacked objectivity because of that relationship. Patient A had worked as a nurse practitioner and was, by all accounts, a strong minded person. Those circumstances made it even more likely that Dr Godwin would lose objectivity. 4. Dr Godwin did not appreciate that he was treating Patient A, not just writing scripts that others had recommended. In addition, it was not until he was questioned at the hearing that he accepted, without qualification, that other treating doctors were not aware that he was prescribing the vast majority of S8 medications for pain relief. Dr Godwin was not prescribing in an emergency situation. Up until April 2014 Patient A could have seen another doctor. After that time Dr Godwin could easily have arranged for Dr Norrie or another general practitioner to objectively assess and treat Patient A. 5. There is no allegation that the treatment Dr Godwin gave to Patient A was inappropriate and we accept that he was prescribing medicines routinely used to treat people who are terminally ill with cancer. At least in the last few months of her life, it is understandable that Dr Godwin was trying to avoid the inconvenience of asking treating doctors to provide scripts. These mitigating factors persuade us that the conduct outlined in Complaint Four is not of a sufficiently serious nature to justify suspension or cancellation of his registration. 6. Complaint Five relates to record keeping. We have found that Dr Godwin has not complied with mandatory record keeping requirements in the Regulations. That conduct amounts to unsatisfactory professional conduct. It is crucial that doctors record every script that is written so that if anything happens to that person, another doctor can take over and see exactly what has been prescribed. However, by itself, Complaint Five is not of a sufficiently serious nature to justify suspension or cancellation of his registration. Protective Orders Power to cancel or suspend 1. Under s 149C(1): 149C Tribunal may suspend or cancel registration in certain cases [NSW](1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. 1. We have found Dr Godwin guilty of professional misconduct in relation to Complaint Three. The Commission applies for orders including a reprimand and the suspension of his registration for between six and twelve months. Dr Godwin submits that a reprimand is sufficient and it is not appropriate to suspend his registration. We understand that even though we have made a finding of professional misconduct, we are not obliged to suspend or cancel Dr Godwin's registration. In some circumstances a caution or reprimand will serve as a sufficient deterrent while upholding the standards of the profession: Health Care Complaints Commission v Quan [2018] NSWCATOD 111 at [81]. 2. Dr Godwin submits that suspension is not appropriate because the assistance he gave Patient A to die of suicide was not premeditated. Patient A had decided to end her own life because she was in unbearable pain. Dr Godwin was motivated only by the desire to help her carry out her wishes and end her suffering. Circumstances of the offence 1. The objective circumstances of the offending are set out in Complaint One. When determining the sentence to be imposed, the Magistrate made the following remarks based on the so-called "subjective" material: It is clear that [Patient A] had an unequivocal and unwavering desire to end her life. I am satisfied that at no stage did the offender seek to encourage her to do so nor did he act in any way that would have obscured or denied any input from the deceased's family, he simply helped her carry out her wishes. ... The accused also acted against his interests in that he must have known that if his part was detected he would likely face action to deregister him as a doctor whether that happened or not is yet to be determined. I do not accept that the prospect of action amount to extra curial punishment for the purposes of sentencing … 1. The Magistrate gave the following reasons for imposing a sentence of 12 months imprisonment, to be served by way of an Intensive Corrections Order: I have no hesitation in finding that the accused did no more than what [Patient A] had earnestly wished for. I also have no doubt that if she had been physically able she would have carried out her wishes without involving this offender. I find that he participated in the plan out of a sincere and abiding love for his partner who was clearly in unbearable pain. I find that he was not motivated by self-interest or greed and he had the support of the deceased's family. Dr Godwin is otherwise and honourable and valuable member of society who is unlikely to ever commit any offence in the future, as such personal deterrence plays no part in formulating a sentence. However like all the cases that I have referred to I am of the view that there is a strong need for denunciation and general deterrence. 1. These observations are relevant when determining the orders we should make. Risk to health and safety of the public 1. By all accounts, Dr Godwin is a highly regarded general practitioner. We accept that, apart from the circumstances outlined in the Complaints, Dr Godwin is a competent practitioner and a person of good character. Dr Norrie was a university colleague of Dr Godwin who came to know him professionally in the 1990's. He has referred numerous patients to Dr Godwin for skin checks and treatment. In his opinion, expressed in a letter dated 11 October 2021, Dr Godwin provides a high level of care to these patients. Dr Norrie is aware of the circumstances surrounding Patient A's death but has not discussed that matter with Dr Godwin. In his view, Dr Godwin should be allowed to continue to work as a skin cancer doctor but queried whether he should be subject to prescribing conditions. 2. Dr Peter Green described Dr Godwin as being "respected by his peers and the many consultants he worked with", adding that "his empathy has always been exceptional…" Dr Stuart Baines believes that Dr Godwin's actions "were under an extremely emotional social circumstance and do not relate to his professional conduct, or reflect a lack of moral or ethics in his character". 3. On 1 November 2021, another general practitioner, Dr Mary Henderson, provided a reference for Dr Godwin. She first met Dr Godwin when she was his supervisor in the Accident and Emergency Department at Gosford District Hospital in 1981. She has worked part-time at the clinic that was partly owned by Dr Godwin since 2003. In her opinion, Dr Godwin is a knowledgeable and empathetic doctor of good ethical and moral character. From her brief discussions with him, she says he remains "sorrowful, regretful and very shaken by his experience of [Patient A's] death and the circumstances". 4. Dr Godwin does not pose a risk to the health and safety of his patients or the public generally. He has continued to practise without conditions. Insight and remorse 1. In his statement, Dr Godwin says that he certainly regrets his part in Patient A's death and "for the dishonesty I engaged in as a result". He acknowledges that what he did was wrong and against the law. Dr Godwin understands that there are professional standards that he is expected to uphold. 2. As well as the references we have quoted above, there is further evidence from Dr Godwin's friends and colleagues of his insight and remorse. A friend and professional colleague, Dr Ian Dicks, has enormous empathy for Dr Godwin and believes there to be "genuine remorse for many of the events in this period of his life". Dr Stuart Baines joined Dr Godwin's skin cancer clinic in 2018. While admitting that he is "not fully versed on the full circumstances or actions", in his view Dr Godwin has "certainly shown genuine remorse regarding the incident". Another professional colleague and friend, Dr Andrew Pritchard-Davies, has spoken to Dr Godwin in detail about the complaints. According to him, Dr Godwin, "has been devastated about this matter and has shown genuine remorse and contrition for his behaviour which has given rise to the complaint". Similar sentiments were expressed by Dr Terrence Vandeleur, a long-time friend and colleague. 3. We accept that Dr Godwin is genuinely remorseful. Need to denounce the conduct and protect reputation of the medical profession 1. On the question of denouncement and deterrence, the main consideration in this case is the objective seriousness of Dr Godwin's conduct and how the community would view his behaviour. There are a range of opinions about the desirability of regulating voluntary assisted dying in New South Wales, both among general practitioners and the broader community. The Voluntary Assisted Dying Bill 2021 (NSW) was introduced into the NSW Parliament in October 2021 but has not passed into law. The parliamentary debates raised controversial practical and ethical issues. It is not the Tribunal's role to express any view about those issues or to assess the level of community support for law reform. What we can say is that we agree with the Magistrate who sentenced Dr Godwin as to the circumstances of Patient A's death and Dr Godwin's motivation in assisting her to die. 2. Patient A was terminally ill and suffering intolerable pain. She decided to take her own life and thought that she would be able to do so without assistance. Dr Godwin did not encourage Patient A or influence her decision in any other way. He assisted when it became clear that she could not end her life by herself. He was motivated by his love for her and his determination to carry out her wishes. 3. As we have said, many in the community would understand and empathise with Dr Godwin's plight. But his actions constitute unethical conduct of a serious kind. Not only did he help Patient A die of suicide but he deliberately misled police about the extent of his involvement in Patient A's death. He used his knowledge as a doctor to dissuade police from prosecuting him. He did so because he knew that if he disclosed what he had done it is likely that he would have been charged with a criminal offence. 4. Dr Godwin also submits that suspending him from practice now must be weighed with the fact that he provides a competent and highly sought after service to the people in his community. That is a relevant factor, though not a significant one. 5. Taking into account all these factors, in our view the appropriate order is to reprimand Dr Godwin and suspend his registration for six months. Orders 1. Dr Godwin is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. Dr Godwin's registration as a health practitioner is suspended for six months from 26 February 2022. 3. Dr Godwin 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 Amendments 11 February 2022 - order 2 - is varied from date of reasons to specific date 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: 11 February 2022