Health Care Complaints Commission v Ochoa [2022] NSWCATOD 32

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ochoa [2022] NSWCATOD 32 Hearing dates: 2 - 3 December 2021 Date of orders: 8 March 2022 Decision date: 08 March 2022 Jurisdiction: Occupational Division Before: The Hon D A Cowdroy AO QC ADCJ, Principal Member Dr S Cowap, Senior Member Dr H Wilson, Senior Member S Lovrovich, General Member Decision: (1) The respondent's conduct in relation to the prescribing drugs with respect to Patient A to Patient G inclusive and poor record-keeping constitutes unsatisfactory professional conduct as particularised; and his conduct in relation to the prescribing of drugs to patients A to patient G inclusive constitutes professional misconduct. (2) Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law the respondent is reprimanded. (3) The following conditions are imposed upon the respondent's practice: (a) The respondent is reprimanded (b) The conditions set out in paragraphs (i) to (ix) below are imposed on the practitioner's registration (i) To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the respondent): (A) where the patients and patient records are shared between the medical practitioners; and (B) where there is always one other registered medical practitioner on site. (ii) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 Drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). (iii) Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). (iv) To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (A) Prescribing. (B) Patient management and assessment. (C) Dealing with difficult and demanding patients. (D) Medical Record keeping. (v) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the Tribunal's decision. (vi) 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. (vii) To undertake an ethics course as approved by the Medical Council of NSW. (viii) To complete within 6 months of the date of the Tribunal's orders the 'National Prescribing Curriculum (NPC)' organised by NPS MedicineWise. (A) Within 1 month the respondent must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. (B) Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (C) To bear responsibility for any costs incurred in meeting this condition. In the event that the 'National Prescribing Curriculum (NPC)' organised by NPS MedicineWise is unavailable, the respondent 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 these orders. (ix) The respondent is to participate in a recognised pathway to achieving Fellowship of the Royal Australian College of General Practitioners (RACGP). (c) The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW) (4) The respondent is to pay the costs of and incidental to these proceedings pursuant to Schedule 5D, cl 13 of the Health Practitioner Regulation National Law, limiting the photocopying costs to the sum of $2,000. (5) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, an order is made prohibiting the disclosure to any person or entity the names of Patients A to Patients G inclusive. Catchwords: HEALTH – Professional registration and discipline – medical practitioner prescribing of Schedule 8 and Schedule 4 drugs inappropriately and in vast quantities – no medical reason to justify quantities of prescribing – inadequate record-keeping – inexperience of practitioner – necessity for continued supervision under category B Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Veterinary Surgeons Act 1923 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Chen (2016) NSWCATOD 144 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna (2014) NSWCATOD 31 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah (2013) NSWCA 342 Kalil v Bray (1977) 1 NSWLR 256 Spicer v New South Wales Medical Board &Ors (unreported) Thursday 19/02/1981) Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Carlos Enrique Tahuil Ochoa (Respondent) Representation: Counsel: D Walker (Applicant) R Mathur (Respondent)