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) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2021/00215564 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of Patient A to Patient G inclusive referred to in these proceedings is prohibited. REASONS FOR DECISION 1. By Application for Disciplinary Findings and Orders dated 27 July 2021 the applicant seeks the following orders: 1. An order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of a Complaint is proved or admitted, the applicant seeks: 2. An order cancelling the respondent's registration and a non-review period of three – four years, pursuant to section 149C of the National Law and 3. An order that the respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law In the event that only some of the particulars of the Complaint approved, the applicant may seek alternative protection orders under section 149C (1) (b) including suspension, and/or section 149A (caution, reprimand, counsel etc), or section 149B (fine). 1. The grounds of the application are as follows "The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90 B (1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B (1) (a), (b) and/or (l) and/or professional misconduct within the meaning of section 139E of the National Law ." 1. The Complaint dated 23 July 2021 which accompanied the Application alleges three allegations of unsatisfactory professional conduct, and one complaint of professional misconduct. Reply 1. For convenience, it should be observed that the respondent, in his reply admits all of the particulars alleged against him; admits all allegations of unsatisfactory professional conduct; and admits professional misconduct. Complaint One 1. Complaint One alleges that the respondent is guilty of unsatisfactory professional conduct under section 139B (1) (a) or (l) of the National Law in that the respondent's conduct demonstrates the knowledge, skill or judgement 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; or that he has engaged in other improper or unethical conduct relating to the practice or purported practice of medicine. This complaint alleges inappropriate prescribing to patients known as patients A, B, C, D, E, F, G. 2. The Complaint alleges that with respect to each of the above patients Schedule 8 drugs, such as oxycodone, fentanyl and morphine and Schedule 4 Appendix D drugs namely diazepam, Seroquel, and Penthrox were prescribed for these patients in the absence of any therapeutic reason, and in quantities which were inappropriate. "This complaint relates to the practitioner's prescribing to Patients A to G. Annexures A to G to this Complaint identify drugs prescribed by the practitioner to Patients A to G respectively. The drugs identified in Annexures A to G are in the following categories: (i) drugs of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) ("PTGA"), being drugs contained in Schedule 8 of the Poisons List proclaimed under section 8 of the PTGA ("Schedule 8 drugs"); (ii) prescribed restricted substances within the meaning of the PTGA, being drugs contained in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) ("PTGR") ("Schedule 4D drugs"); and (iii) restricted substances within the meaning of the PTGA, being drugs contained in Schedule 4 of the Poisons List proclaimed under section 8 of the PTGA ("Schedule 4 drugs"). For the purposes of the particulars set out below, the recognised therapeutic standard of what was appropriate in the circumstances includes: (i) the Full Prescribing Information published by MIMS Australia for the relevant drug at the relevant time; (ii) the Product and Consumer Medicine Information published by the Therapeutic Goods Association for the relevant drug at the relevant time; (iii) the NSW Ministry of Health guidelines for Prescribing of Benzodiazepines Flunitrazepam and Alprazolam issued November 2013; (iv) the Medical Board of Australia "Good Medical Practice: A Code of Conduct for Doctors in Australia" issued March 2014; (v) the NSW Therapeutic Advisory Group publication titled "Preventing and managing problems with opioid prescribing for chronic non-cancer pain" dated July 2015; (vi) the Royal Australian College of General Practitioners ("RACGP") publication titled "Prescribing drugs of dependence in general practice, Part B: Benzodiazepines" dated June 2015; (vii) the RACGP publication titled "Prescribing drugs of dependence in general practice, Part C2: The role of opioids in pain management" dated October 2017 (in relation to periods of contravention after that date); (viii) the RACGP publication titled "Prescribing drugs of dependence in general practice, Part C1: Opioids" dated October 2017 (in relation to periods of contravention after that date)." 1. The particulars of Complaint One are so voluminous that they are reproduced in Schedule A. Complaint Two 1. Complaint Two alleges unsatisfactory professional conduct under section 139B (1) (a) or (l) of the National Law for the same reasons as referred to in Complaint One, but the conduct relied upon relates to his assessment, record keeping and treatment of the above patients. 2. The particulars of Complaint Two are as follows: "Particulars 1, 2, 3 and 6 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) individually or in combination with the other particulars. Particular 4 is relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) only in combination with other particulars. Particular 5 is relied upon only as other improper conduct for the purposes of section 139B(1)(l). The other particulars are relied upon in the alternative, individually or in combination with other particulars, as other improper conduct for the purposes of section 139B(1)(l). 1. The practitioner did not perform an appropriate initial assessment of each of Patients A to G before prescribing the drugs identified in the particulars of complaint one for each patient, including for each patient all or some of the following: (a) taking a specific history regarding the patient's use of restricted drugs, particularly benzodiazepines and opioids; (b) reviewing the patient's clinical notes to identify the history of prescribing restricted drugs to the patient, including the quantities, dosage, frequency and duration of prescribing; (c) for Patients A, F and G – contacting the Prescription Shopping Information Service in relation to the patient and identifying whether the patient had participated or was participating in the Opioid Treatment Program; (d) performing a physical examination in relation to the patient's reported pain; (e) ordering a urine drug screen; (f) ordering appropriate pathology tests including blood count, renal and liver function, coagulation studies, blood sugar and thyroid function, hepatitis B and C and HIV tests, and vitamin B12 and folic acid levels; and (Patient (g) preparing a pain management plan for the patient. 2. In relation to referrals of Patients A to G to other health practitioners, the practitioner: (a) for Patient A – failed to take reasonable steps to ensure the patient followed up and attended referrals made for pain management; (b) for Patient B – (i) failed to make a timely referral to an appropriate health practitioner for pain management; (ii) failed to take reasonable steps to ensure the patient followed up and attended referrals made for pain management; and (iii) failed to take reasonable steps to ensure the patient followed up and attended a referral made for psychiatric assessment and management; (c) for Patient C – (i) failed to make a timely referral to an appropriate health practitioner for pain management; and (ii) failed to make any referral to an appropriate health practitioner for psychiatric assessment and management; (d) for Patient D – (i) failed to make any referral to an appropriate health practitioner for pain management; and (ii) failed to make any referral to an appropriate health practitioner for psychiatric assessment and management; (e) for Patient E – failed to give any or adequate consideration to information provided by Patient E's pain management specialist Dr Gorman; (f) for Patient F – (i) failed to make a timely referral to an appropriate health practitioner for pain management; (ii) failed to take reasonable steps to ensure the patient followed up and attended referrals made for pain management; and (iii) failed to take reasonable steps to ensure the patient followed up and attended a referral made for psychiatric assessment and management; (g) Patient G – (i) failed to make any referral to an appropriate health practitioner for pain management; and (ii) failed to make any referral to an appropriate health practitioner for drug rehabilitation. 3. The practitioner: (a) knew or should have known that each of Patients A to G were exhibiting drug-seeking or doctor-shopping behaviour, including by reason of: (i) for each patient – the patient making multiple requests for early scripts and replacement scripts alleging the scripts had been lost or stolen; (ii) for Patient D – the patient also making a request for an 'owing script' on one occasion, in circumstances in which: (iii) for Patients A to D – the patient was identified in their patient notes at the Practice as a 'doctor shopper'; (iv) for Patients B and C – the patient was identified in their patient notes as participating in the Opioid Treatment Programme; and (v) for Patient G – the patient was identified in their patient notes at the Practice as being drug dependent; (b) failed to respond appropriately to that drug-seeking and doctor-shopping behaviour by Patients A to G, including by: (i) questioning the patient about the circumstances in which they were requesting drugs on each occasion; (ii) questioning the patients when they reported lost or stolen scripts, and refusing to provide replacement scripts on these occasions; (iii) for Patients A to D and G – discussing the patient's behaviour with his colleagues who had noted the patient as a 'doctor shopper' or drug dependent; (iv) adequately warning or advising the patient about the consequences of their behaviour; or (v) refusing further prescriptions of drugs or imposing appropriate conditions on continued prescribing. 4. The practitioner continued to prescribe narcotics (opioids) and benzodiazepines concurrently to Patients A to G without: (a) adequately warning or advising the patient about the risks of such concurrent prescribing; or (b) taking appropriate steps to manage those risks. 5. The practitioner: (a) continued to prescribe narcotics (opioids) and benzodiazepines to Patient F in circumstances in which he suspected, or should reasonably have suspected, that some or all of those drugs were being illegally sold, diverted or abused; and (b) failed to raise the potential illegal sale, diversion or abuse of those drugs by Patient F with appropriate authorities such as the Pharmaceutical Regulatory Unit or NSW Police. 6. The practitioner failed to take appropriate action in response to abnormal liver function test results for Patient F, including all or some of the following: (a) providing advice to Patient F about the test results, including the potential impact of the drugs Patient F was taking; (b) ordering appropriate pathology tests including for hepatitis B or C; or (c) referring Patient F to an appropriate specialist." Complaint Three 1. This Complaint alleges unsatisfactory professional conduct under section 139B (1) (a) or (b) of the National Law alleging that his conduct falls below the reasonably expected standard of a practitioner and or that the respondent has contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) ("NSW Regulation"). 2. The particulars of Complaint Three are as follows "1. The practitioner failed to make and keep adequate records in relation to Patients A to G, including: (a) adequate records of the patient's history, presenting symptoms and diagnosis, contrary to clause 1(2)(a) and (b) of Schedule 4 of the NSW Regulation; and (b) adequate records of the practitioner's management of the patient, including: (i) documenting the rationale for and risks associated with the concurrent prescribing of narcotics (opioids) and benzodiazepines for the patient; and (ii) making an overall summary of the drugs prescribed to the patient; contrary to clause 1(2)(b) and (c) of Schedule 4 of the NSW Regulation." Complaint Four 1. This complaint alleges professional misconduct under section 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or has 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 suspension or cancellation of the practitioners registration. 2. The particulars are as follows: "1. Complaints one and two are relied on individually. 2. Complaints One to Three are relied on in any combination." Prior proceedings 1. On or about 25 July 2018 a complaint was received by the Sutherland Shire Police Area Command alleging that the respondent was dispensing large quantities of Endone to his patients. As a consequence, on 6 September 2018 the Medical Council of New South Wales ("Medical Council") instituted proceedings pursuant to section 150 of the National Law with regard to the allegations pertaining to patient F. As a result of those proceedings, the delegates identified the following issues with respect to the conduct of the respondent: 1. excessive and dangerous prescribing of opioids on private scripts 2. lack of compliance with authorities and requirements of schedule 8 medications 3. prescribing of opioids to a drug dependent patient 4. general patient management and clinical judgement 5. Poor medical records 1. Following the hearing before the Medical Council of New South Wales on 6 September 2018, the respondent's registration was cancelled from that date under the provision of section 150 (1) (a) of the National Law. 2. Thereafter, an application was made by the respondent for a variation of the existing orders pursuant to section 150A of the National Law. On 20 December 2018, the application was heard by the Medical Council. On 21 December 2018, the Medical Council ordered that the suspension be lifted and that instead conditions be imposed, including level B supervision. 3. The respondent was instructed to attend at the offices of the Pharmaceutical Regulatory Unit ("PRU") to relinquish his Schedule 4 Appendix D Schedule 8 drug authorities. On 9 January 2019 the respondent agreed to the making of orders under the Poisons and Therapeutic Goods Act 1966 (NSW) (PTG act) and the Poisons and Therapeutic Goods Regulation 2008 (NSW) prohibiting him to possess, supply or issue a prescription for any Schedule 8 and Schedule 4 Appendix D drug, which took effect on and from 18 January 2019. 4. A further hearing was held pursuant to s 150 of the National Law. This hearing resulted from the fact that other complaints against the respondent in relation to patient A, B, C, D, F and G, had been received. On 2 May 2019, and with effect from 6 May 2019, the Council imposed the same practice conditions as existed together with a requirement that the respondent undergo a Performance Assessment. Expert report 1. Dr Emery John Kertez, medical practitioner (the expert) has provided a detailed report concerning the conduct of the respondent. The detailed report is 85 pages in length and the specific conduct referred to in each of the particulars relied upon by the applicant was considered by the expert. The report considers the specific issues for each of the patients. Because of the intricate detail contained in the report, a summary is set out hereunder. As already referred to, the respondent admits each particular and admits that his conduct constitutes unsatisfactory professional conduct in respect of each Complaint One, Two, and Three, as alleged, and professional misconduct as alleged in Complaint Four. The expert considered that the respondent has "considerable inexperience". Patient A Initial assessment: 1. This patient had consulted the respondent from 14 October 2015 until 15th of March 2018. There is no initial history, examination or special tests undertaken at the initial patient contact. Pathology tests were carried out and completed on 18 July 2017. 2. The respondent did not conduct an appropriate assessment of the patient before prescribing oxycodone, diazepam and Phentermine: such conduct falls significantly below the standard expected of a GP of his level of training or experience and the departure from the standard is significantly below that expected. Appropriateness of drugs: 1. The respondent prescribed 4238 OxyContin 80 mg equivalent doses to the patient over 864 days equating to almost 5 tablets daily. This is significantly higher than the guidelines (2 daily); is high risk and exceeds recommended dose of 100 oMEDD daily: the exact number of such tablets prescribed remains indeterminate due to haphazard dosing schedules kept by the respondent. This conduct falls below the standard expected. 2. The respondent prescribed 504 Valium 5mg tablets over the same period equivalent to ½ a Valium 5 mg tablet per day. This is within the guidelines. It is noted that some of the Valium prescriptions were coupled. The period of prescribing was in fact nine months and not the total duration of the prescribing. 3. The respondent's benzodiazepine prescribing to patient A is below the standard expected of a GP and the prescribing of four prescriptions of Phentermine within a period of four months is within the guidelines. Appropriateness of prescribing: 1. The respondent had no pain management plan or notes for long-term management: prescribing of OxyContin and Valium over 850 days without specialist input and prescribing of OxyContin and diazepam in the doses prescribed and frequency renders this conduct significantly below the standard expected of a practitioner. Referrals: 1. In October 15 the respondent referred the patient to a pain specialist but there is no evidence of follow-up by the patient. Drug seeking: 1. The respondent's colleagues noted on three occasions that the patient was a "Dr Shopper". The respondent's failure to recognise and act upon such behaviour falls significantly below standard. 2. The notes do not suggest that the respondent had knowledge of the patient's drug-seeking behaviour but the respondent should have recognised such behaviour. The respondent applied for an authority to prescribe the OxyContin to the patient in February 2018 but there is no evidence that authority was ever given by PRU: this departure is significantly below standard. 3. The respondent prescribed 550 tablets over a period of 850 days of diazepam to the patient. This is not inappropriate but there is no evidence that the risks of taking oxycodone and diazepam together were ever discussed nor warnings given. This conduct falls significantly below the relevant standard. 4. The respondent issued multiple private (non-PBS) scripts for oxycodone and Phentermine. 5. The prescribing of Phentermine on private prescriptions was justified. 6. The prescribing of OxyContin on private prescriptions was probably surreptitious and falls below standard. 7. The respondent's notes are of poor standard and the record-keeping falls significantly below standard. 8. Generally the respondent failed to address the drug-seeking behaviour of the patient and his conduct falls significantly below standard. Patient B: 1. This patient consulted the respondent from 16th of January 2016 to 2 September 2018. There is no initial history examination or special tests undertaken: this patient had been seen by numerous other practitioners in the group practice; he was known to be drug dependent and drug-seeking person who had been on the NSW Opioid Treatment Program since May 2009. 2. No specific history was taken at initial consultation concerning the prescribing of oxycodone, alprazolam, diazepam or Quetiapine; no management plans are evident; a complete consultation including history, examination, relevant test ordered and specific attendance to S8 prescribing was required. Pathology testing should have included blood count, renal and liver function, coagulation studies, blood sugar, and thyroid function; hepatitis B, C and HIV; vitamin D, B12 and folic acid levels; and a urine test. The failure to conduct such examinations is significantly below the expected standard. 3. The respondent prescribed approximately 1700 OxyContin 80g equivalent doses in 517 days but the exact number is not determined. 4. The respondent prescribed 2760 alprazolam 2 mg tablets over 860 days equivalent to 3 tablets daily. This is within the guidelines. The respondent prescribed 2640 300 mgs equivalent Quetiapine tablets over 860 days equating to 3 tablets daily. The prescribing is within the relevant limits. 5. The respondent prescribed OxyContin, alprazolam, diazepam, and Quetiapine over 860 days. The continuous prescribing of OxyContin and alprazolam is significantly below the standard and the continuous prescribing of Quetiapine in the quantities above fall significantly below the standard. 6. The respondent referred the patient a pain specialist in February 2017 and in March 2018: there is no evidence of any follow-up of the patient. A psychiatrist referral was made between January 2016 until September 2018: there is no evidence that the referral letter was created or sent out. The respondent noted on two occasions that the patient was a "Dr Shopper" as is clearly stated in the notes. The respondent's conduct in failing to recognise the drug-seeking behaviour is a significantly below the requisite standard. 7. The respondent prescribed a limited quantity diazepam: 150 tablets in a period of less than 30 days: this was not inappropriate but the respondent's failure to document the risks and pitfalls of benzodiazepine and narcotics prescribed concomitantly and his continuation of prescribing both drugs together albeit episodically is conduct below standard. 8. The respondent's prescribing of OxyContin and alprazolam on private prescriptions was likely to be surreptitious and is below the expected standard. 9. The medical notes are of poor standard and repetitive; implying the use of auto fill drop-down notes: the failure to accurately record the patient's management and risks in this case makes the record-keeping by the respondent to be significantly below standard. 10. The respondent's failure to address the drug-seeking behaviour of the patient, his failure to make an overall summary of all medications that the patient was prescribed by the respondent's colleagues and himself renders the conduct significantly below standard. Patient C: 1. This patient consulted the respondent between 24 October 2015 until 5 September 2018. No initial history examination or special tests undertaken. The patient had seen other practitioners in the practice and was suspected being drug dependent. This patient had been on the NSW Opioid Treatment Program for the treatment of opioid dependency since at least July 2002. A series of pathology tests were ordered and completed. There is no management plan in the notes of the respondent: pathology testing should have included blood count, renal and liver function, coagulation studies, blood sugar, thyroid, hepatitis B, C and HIV. Vitamin D, B12 and folic acid levels should have been obtained as well as a urine drug screen. 2. The respondent prescribed morphine SR on 13 May 2018 which ceased after one day due to a "allergy" (rash). The respondent changed the drugs from 240 mg OxyContin to 200mg morphine which equates to greater than one third reduction dosage as oMEDD for OxyContin is 1.5. The respondent made no assessment of the essential parameters for continued narcotic and benzodiazepine prescribing: this conduct falls significantly below the standard. 3. The respondent prescribed 2919 OxyContin 80mg doses to the patient over 1074 days which equates to almost 3 tablets daily which exceeds the recommendations of two daily equating to 160mg oxycodone which is 270 oMEDD and three tablets x 80mg which is 360 oMEDD. The prescribed dosage for this patient was almost 3 tablets daily, or oMEDD of 360 which is high risk and exceeds the recommended dose of 100 oMEDD. The respondent's notes are haphazard and the exact number of tablets prescribed cannot be ascertained. 4. The respondent's narcotic prescribing of oxycodone is below the standard expected. The respondent prescribed 750 diazepam 5g tablets to the respondent over 1074 days equating to 1.5 diazepam 5g daily: this is within the guidelines and the diazepam prescribing is within recommended limits. 5. The respondent's prescribing of OxyContin, diazepam and morphine over a period of 926 days falls below the standard expected. The respondent referred the patient to two gastroenterologists three times in 2016 and in 2017. Two referrals to pain specialists or pain management clinics are found in the notes. The respondent's failure to the refer the patient in a timely fashion for advice for pain management and psychiatric assessment and management is significantly below standard. 6. The patient was known to be a "Doctor Shopper" but the respondent failed to recognise such fact. This conduct therefore falls significantly below the expected standard. 7. The prescribing of diazepam of 750 tablets over 1074 days was not inappropriate so far as quantity was concerned but outside the guidelines for prescribing. 8. The respondent's notes of a poor standard ; brief (3 -5 lines) often repetitive, implying the use of auto fill drop-down notes which have not been modified to suit the consultation. This is significantly below the expected standard. 9. Several other practitioners in the same practice prescribed the patient narcotic medications: the respondent paid no attention to the other prescriptions. The respondent made references to patient's non-compliance regarding dose reductions but these management issues were not implemented or followed through: the failure to address the drug-seeking behaviour of the patient, his failure to make an overall summary of all medication renders his conduct significantly below standard. Patient D 1. This patient consulted the respondent from 19 November 2016 to 5 September 2018. There was no initial history, examination nor special tests undertaken at the initial patient contact. The patient had been a practice patient who had seen numerous other doctors in the group practice. She had been in the Pain Management Unit at St Vincent's Hospital Darlinghurst. No management plan is evident. A complete consultation including history examination, relevant tests were ordered and specific attendance to S8 prescribing would have been expected; pathology tests were ordered but have no apparent connection to the possible/probable drug dependence of the patient. Pathology testing was required for blood count, renal and liver function, coagulation studies, blood sugar and thyroid function; hepatitis B and C and HIV; Vitamin D, B12 and folic acid levels should have been obtained. The failure to undertake essential parameters for continued narcotic and benzodiazepine prescribing falls significantly below standard. 2. The respondent prescribed 3420 oxycodone doses in 640 days equating to 5.5 tablets daily. This is high risk and exceeds recommended dose of 100 oMEDD: this prescribing is below the standard expected. 3. The respondent prescribed 1955 diazepam 5 mg tablets over 640 days equating to 3 tablets daily: this is within product information, however there is little evidence to support the long term daily use of benzodiazepines. 4. There is no evidence of any prescriptions written for morphine injections and it is assumed that morphine was supplied from ampoules administered to the patient from the surgery stock. 5. The respondent prescribed 265 fentanyl 75mcg patches (each with a 3 day duration of action) over a period of 640 days. This is significant overprescribing and below the expected standard. 6. Early in the consultations the respondent refused to prescribe Methoxyflurane on the recommendation of St Vincent's Hospital Pain Clinic: however contrary to that recommendation the respondent prescribed Methoxyflurane at least 26 times on private prescriptions: by his own admission at the section 150 hearing in May 2019, he was not familiar with this drug and could give no valid reason for his continued prescribing. Such conduct falls significantly below the expected standard. 7. The respondent prescribed oxycodone, diazepam, fentanyl, and methoxyflurane over a period of 926 days. The respondent had no pain management plan: there is no specialist input into the long-term prescribing. A dosage of oxycodone 5mgs three times daily is the recommended upper limit for that medication with recommendations for specialist assessment and review of those doses; a dosage of diazepam 5 mgs 2 to 3 times daily is within product information, however there is little evidence to support the long term daily use of benzodiazepines. 8. Fentanyl patches can be used for long-term pain management in extenuating circumstances but use this drug can lead to dependence and tolerance. 9. Early in the respondent's care of the patient, the St Vincent's Pain Management Team recommended that the patient be weaned from 100 mcg to 75 mcg and continue that strength. 10. There is no evidence that the respondent wrote any prescriptions for morphine injections. The respondent's continuous prescribing of OxyContin, fentanyl, diazepam falls below the standard expected; the continuous prescribing of methoxyflurane is significantly below the standard; the supervision or administration of intramuscular morphine in his rooms does not accord with therapeutic guidelines for frequency and duration: his conduct falls below standard. 11. The administration of apparent parenteral narcotic agent to a person suspected of being a drug dependent person is contrary to section 29 of the PTG Act and requires an authority. 12. The respondent failed to refer the patient in a timely fashion for pain management and psychiatric assessment and this falls significantly below standard. 13. The respondent failed to recognise and act upon the drug-seeking behaviour of the patient and this conduct falls significantly below standard. 14. The patients exhibited drug seeking behaviour including requests for replacements for "lost scripts". These requests were accepted by the respondent as a legitimate reason to prescribe extra medication without questioning. He failed to recognise and act upon the drug-seeking behaviour of the patient results in a finding that his conduct is significantly below standard. 15. The respondent should have had knowledge of the patient's drug dependent status included in the information on the "Doctor Shopper" line where she was identified for the period October 2017 – December 2017. The respondent failed to access information status and continued to supply her S8 medications. 16. The respondent prescribed a significant quantity of diazepam: 1955 tablets over 1074 days: this prescribing was not inappropriate, however there is little evidence to support the long term daily use of benzodiazepines. 17. The respondent's notes are poor standard; he failed to record accurately and pertinently his management of the patient, his record-keeping falls significantly below the standard expected, further, the respondent should have been aware from other practitioners; and the practice that prescriptions were being written for this patient by other practitioners yet the respondent failed to have regard to them. His conduct falls significantly below standard. Patient E 1. This patient consulted the respondent from 19 February 2016 until 30 August 2018. There is no initial history or examination. She was noted to be a "Doctor Shopper". Pathology tests were ordered and completed in February 2016 by another practitioner who sent copies to the respondent. There is no history taken regarding prescribing of oxycodone, naxolone, diazepam, oxazepam, temazepam, nitrazepam, clonazepam and tramadol by the respondent. 2. The patient had been on oxycodone medication since 2011 and on other drugs for several years. 3. The respondent failed to establish the possible serious outcome of combined prescribing with other doctors in combination with continued narcotic and benzodiazepine prescribing: this conduct falls significantly below standard. 4. The dosages of oxycodone, diazepam, clonazepam, oxycodone and oxycodone/nalaxone were significantly below the level expected. 5. The patient had been referred to a pain specialist by the respondent in 2016 and 2017: there is no evidence in the notes of any correspondence from the patient's pain specialist. The patient was also referred to a second pain specialist in February 2018 by another practitioner in the practice who requested that the respondent assume responsibility for narcotic prescribing for this patient from January 2018. 6. The patient was known to be a "Doctor Shopper" on two occasions in the period March – May 2016. There are no references the patient's participation in the NSW Opioid Treatment Program. 7. The respondent should have recognised the patient's drug-seeking behaviours and his failure to do so is significantly below the expected standard. 8. It was not appropriate for the respondent to prescribe benzodiazepine to the patient in combination with oxycodone. In doing so the respondent's conduct falls below the requisite standard. 9. The respondent's notes are of poor standard: 3 – 5 lines, repetitive, implying the use of auto fill drop-down notes which have not been modified to suit the consultation. 10. The respondent's failure to record accurately and pertinently the management of the patient makes the respondent's record-keeping significantly below standard. 11. Other practitioners in the same practice were prescribing narcotic medications to this patient: the respondent failed to address the patient's drug-seeking behaviour: such departure is significantly below the standard expected. Patient F 1. This patient consulted the respondent from 31 March 2016 until 27 August 2018. There is no initial history examination or special tests undertaken. Appropriate pathology testing should have been carried out; the respondent's failure to assess the essential parameters of the continued narcotic and benzodiazepine prescribing at initial contact falls significantly below the standard expected. 2. The respondent prescribed 13,000 oxycodone 5 mg doses to the patient in 910 days which equates to 14 tablets daily. This is high risk and exceeds the recommended dose of 100 oMEDD. 3. The respondent's prescribing is significantly below standard. 4. Late in the period of the respondent's care he prescribed fentanyl patches. The respondent expressed the view that the patient was taking too many oxycodone 20 – 25 daily and his pain management would be better managed with a fentanyl patch. The patient seemed agreeable to the change but was only seen once more by the respondent. 5. The respondent's oxycodone prescribing falls significantly below the standard and the prescribing of diazepam in conjunction with excessive narcotic prescribing falls significantly below standard. 6. The respondent's prescribing of temazepam, phentermine and tramadol tablets to replace the 20 to 25 oxycodone tablets daily falls significantly below the standard expected. 7. The respondent had no pain management plan in the notes: oxycodone and diazepam were prescribed over 910 days. These medications are for short-term use in specific instances. There is no specialist report for long-term prescribing. A dosage of oxycodone 5mgs three daily is the recommended upper limit for specialist assessment and review above those is required especially if the prescribing is over a period of time greater than 3 to 6 months. 8. A dosage of diazepam 5mgs 2 to 3 times daily is within the parameters of the product information, however there is little evidence to support the long term daily use of benzodiazepines. 9. The respondent prescribed fentanyl, temazepam tramadol and phentermine over a limited time. The prescribing of oxycodone fell significantly below the standard. 10. The respondent referred the patient to a neurosurgeon on two occasions and to a gastroenterologist. 11. The patient exhibited drug seeking behaviour and requests for "early scripts" for extended travel reasons on at least four occasions and once for "loss script". The travel did not take place. The respondent's failure to recognise and act upon the drug-seeking behaviour is significantly below the expected standard. The respondent should have had suspicions of the patient's drug dependent status. 12. The respondent stated in the section 150 hearing that he rang the Prescription Shopping Information Service in early 2007 for a status report of the patient but failed to document the report. No report can be found in the patient's notes to confirm a telephone call. 13. The respondent provided oxycodone to the patient without an authority under section 29 of the PTG act: the respondent's conduct is significantly below standard. 14. The respondent prescribed diazepam: 3500 tablets in 910 days which is within the parameters of the product information, however there is little evidence to support the long term daily use of benzodiazepines. 15. The respondent's failure to document the risks and pitfalls of benzodiazepine nine and narcotics prescribing concomitantly in his continuation of prescribing both drugs together is conduct below the standard expected. 16. The patient was prescribed oxycodone, diazepam, temazepam, fentanyl and tramadol on private scripts and there were two prescriptions for phentermine also written on private prescriptions. 17. Oxycodone prescriptions were written on private prescriptions to provide increased quantities above those available through the PBS increased quantities hotline. Similarly prescribing diazepam privately allowed him repeats on the prescriptions as no repeats are allowed on the PBS for diazepam. The respondent's non-PBS prescribing of benzodiazepines and narcotics in order that multiple and excess quantities of medications could be dispensed at one time is conduct significantly below the expected standard. 18. The respondent's non-PBS prescribing of benzodiazepine, narcotics permitted multiple and excess quantities of the medications to be dispensed at one time. This conduct falls significantly below the standard expected of a practitioner. 19. The respondent was in receipt of four series of pathology results from the patient's blood tests each of which revealed mildly abnormal liver function tests ("LFT"). The results were discussed with the patient on three separate occasions but not once on each of the three appointments were the abnormal LFTs discussed. 20. The respondent failed to discuss these potentially serious side-effects of medications he prescribed. This conduct is significantly below the expected standard. 21. The respondent's notes are of poor standard: 3-5 lines, repetitive and often implying the use of auto fill drop-down notes which have not been modified to suit the consultation. The failure to maintain records fall significantly below the expected standards. 22. The respondent was almost exclusively the only practitioner in the practice to prescribe the patient narcotic medications. His failure to address the drug-seeking behaviour of the patient falls significantly below the expected standard. Patient G 1. This patient consulted the respondent between 20th of May 2017 until 2 September 2019. No initial history examination or special tests were undertaken at the time of initial contact. No special history was taken regarding the prescription of diazepam on 17 August 2017 nor when oxycodone was prescribed on 21 October 2018. 2. No pain management plan is evident; a complete consultation was required with specific attention to S8 prescribing would have been expected. Appropriate blood tests should have been taken and urine screening. The respondent's failure to assess the essential parameters for initial narcotic and continuing benzodiazepine prescribing at the initial assessment is conduct significantly below the standard expected. 3. The respondent prescribed 220 oxycodone 80gs slow-release tablets in 120 days which equates to almost 2 tablets daily. This is high risk and exceeds the recommended dose of 100 oMEDD. 4. The respondent prescribed approximately 450 oxycodone 20mgs immediate release tablets in the 120 days, namely 3.5 tablets daily. Again this is high risk and exceeds the recommended dose of 100 oMEDD. 5. The respondent prescribed approximately 2700 diazepam 5mgs tablets over a period of 380 days. This equates to approximately 7 diazepam 5mgs daily which is significantly above the guidelines for prescribing of benzodiazepine. The notes indicate that the respondent was well aware of the patient's drug dependent status. 6. The respondent's prescribing of diazepam, oxycodone and methadone 10mgs is significantly below the standard expected. 7. The prescribing by the respondent of oxycodone, diazepam and methadone is significantly below the standard expected. 8. The respondent prescribed oxycodone and diazepam over a period of 380 days: no pain management plan exists. 9. The respondent's failure to make any timely referrals for pain management of drug rehabilitation renders his conduct significantly below the standard expected. 10. The patient was identified as a drug dependent person throughout his file: it appears that the respondent was always available and ready to prescribe the respondent's medication to him when requested. The respondent's failure to document the risks and pitfalls of benzodiazepine and narcotics prescribing concomitantly and his continuation of prescribing both drugs together albeit episodically for benzodiazepines, is conduct below the standard expected. 11. The respondent's notes are of poor standard; the failure to maintain records accurately and pertinently is conduct significantly below the expected standard. 12. The respondent's failure to recognise and address the overt drug-seeking behaviour of the respondent and his conduct in failing to make an overall summary of all the prescribed medications of the patient renders the respondent's conduct significantly below the expected standard. Findings 1. The Tribunal has considered the extensive expert report. Although the respondent has admitted the allegations in writing to the Tribunal, as provided by section 149(b) of the National Law, the Tribunal has made its own determination. With respect to each finding of the expert, the Tribunal concurs. 2. The Tribunal considered a number of factors that in their opinion contributed to the respondent's prescribing deficiencies. The Tribunal accepts that no attention was paid to the problem of dependency on prescription medications during the respondent's undergraduate education and early post graduate training in Venezuela, and that this was not a widely recognised problem in the medical profession at the time. The respondent then spent five years not practising medicine, before engaging in unsupervised general practice in Australia in 2014. He had no further education or training in this area until after his interaction with the Medical Council. At the time of his inappropriate prescribing, he was working in an unsupported environment and under pressure to see a high number of patients per hour. 3. In addition, the respondent, described in supervision reports as being 'kind and gentle' has identified that he had difficulty saying "no" to patients, and this was exacerbated when dealing with drug seeking patients because of his personal experience of substance use within his own family. 4. The Tribunal considered a number of changes that the respondent has made. He has completed a number of relevant RACGP accredited courses on the subjects of substance use, dependence and management of chronic non cancer pain, and has discussed these matters extensively with his supervisors. He has engaged with a psychologist and gained insight into his difficulties saying "no" and developed a more reflective style of practice. He has moved to a new medical practice where he has good support from his Council appointed supervisor who is also an RACGP accredited examiner and GP Synergy accredited supervisor, and is able to practice at a pace with which he is more comfortable. 5. Taking into account the respondent's progress, the Tribunal is satisfied that any residual risk to the public can be adequately mitigated by conditions that restrict his S8 and S4D prescribing, ensure ongoing supervision, education in the area of prescribing and ethics and that he continues working within a group practice. Principles Standard of Proof 1. The seriousness of the complaints requires the Tribunal to apply a high degree of satisfaction before it can be satisfied that the complaints are established. The test usually applied is that of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and also the observations of the NSW Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41. 2. The Tribunal is required to give due weight to expert evidence placed before it by the parties. However, it has been stated that the "ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is the Tribunal itself": see Kalil v Bray (1977) 1 NSWLR 256, 262. Although this decision related to the Veterinary Surgeons Act 1923 (NSW), by analogy the Tribunal considers it appropriate to apply the same consideration. Legal Principles 1. Unsatisfactory professional conduct is defined in s 139B of the National Law to include, relevant for these proceedings, conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)); or contravention by a practitioner of a provision of the National Law or regulations made under such law or under the NSW regulation, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention (s 139B(1)(b)); or any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession (s 139B(1)(l)). 2. Professional misconduct is defined in s 139E of the National Law as including: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The Tribunal must consider whether the respondent's conduct constitutes unsatisfactory professional conduct, and unsatisfactory professional conduct of such a degree as to constitute professional misconduct. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA said 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 judgement made by the Tribunal." 1. The conduct as particularised in each of the Complaints in relation to the treatment of Patient A to Patient G inclusive is found by the Tribunal to be conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and as such constitutes unsatisfactory professional conduct within the meaning of s 139B of the National Law. Further, the conduct referred to in Complaint One in relation to Patient A to Patient G inclusive is such as to constitute professional misconduct under s 139E of the National Law. Background to Respondent 1. The respondent graduated with the equivalent of the degrees of Bachelor of Medicine and Bachelor of Surgery in Venezuela in 2005 following a six-year period of study. He practised as a general practitioner and in orthopaedic surgery between 2005 and 2008 in Venezuela before coming to Australia in approximately 2008. The respondent then was engaged undertaking various medical assistant positions between 2009 to 2015. 2. The Australian Health Practitioner Regulation Agency Evidentiary Certificate records that the respondent was first registered on 4 December 2014 (MED 0001927187). Since that date he was granted provisional registration to 16 March 2016; then general registration from that date to 6 September 2018 when he was suspended until 21 December 2018. He was granted general registration from 21 December 2018, subject to conditions. 3. The evidentiary certificate provided by the Medical Council of New South Wales pursuant to section 244A of the National Law states that the respondent did not have registration in New South Wales prior to 30 June 2010. 4. Before the Medical Council at the section 150 hearing on 6 September 2018, the respondent stated that he considered that he was: "… very naïve and very easily manipulated on to following in the pattern of prescription that was being done. I deeply regret not having been more aware. I deeply regret not having my eyes open wider and not having my thoughts in the hidden schedule or the hidden agenda that may have been or that was indeed taken place. There is no excuse. There is no way to explain such innocence however I can recognise that and I can use it as a learning cornerstone in avoiding any similar situations and circumstances." 1. Later, the respondent said of his conduct: "It was very poor decision-making. I can only say, again, if the situation was to repeat and I was given the opportunity to continue to practice this would not happen again." 1. The respondent continued: "I cannot start to explain the remorse when I realised how great the danger would have been not only to the patient but for the community. I understand the nature of this hearing and understand how troublesome – to say the least – this whole situation is. And I recognise it. I am reflecting and have reflected on it. I am willing to and starting to make modifications – serious modifications to my practice. I am continually up skilling and look forward to upskill." 1. Before the Medical Council on 20 December 2018 the respondent said: I was, for a lack of a better word perhaps, dazzled by the presentation, by the fact that the patient didn't appear as a person drug-seeking or involved in anything illicit or illegal unjust that presentation – I think, on reflection, it may have been even a bit of a transfer and stuff. Yes, he looks a bit like me, I wouldn't do it, he's not doing it and I think that's what happened at the time. 1. The Medical Council of New South Wales has conducted audits of the respondent's practice and prepared reports in June 2021 and in September 2021. In the report signed on 16 June 2021 the assessor reported that the respondent met the standard expected of a practitioner of similar training and experience; the assessor also considered that there is no risk to the public if the supervision conditions, category B which had been in place since December 2018, were reviewed. The assessor noted that the respondent's desire to practise in phlebotomy would be a "very limited practice". 2. The Tribunal notes that the respondent has been actively pursuing courses to improve his skills. The respondent's RACGP 2020 – 2022 Triennium Statement records that the respondent has now achieved 657 CPD points when the minimum requirement is 130 points. The respondent expressed his desire to specialise in phlebotomy. Disciplinary sanction 1. The paramount consideration for the Tribunal is the health and safety of the public. Section 3A of the National Law states: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Such principle has been comprehensively referred to in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] where Meagher JA (with whom Basten and Emmett JJA agreed) said: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. In Health Care Complaints Commission v Dr Della Bruna (2014) NSWCATOD 31, Wright J at [88] summarised the protective principles as follows: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2)Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve 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 - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]." 1. Where the issue which has been brought to the attention of the applicant raises inappropriate prescribing, special observations have been made. In Health Care Complaints Commission v Chen (2016) NSWCATOD 144, the Tribunal said in relation to the issue of overprescribing and inappropriate prescribing at [137] relevantly: "Medical practitioners are in a unique position in enabling members of the public to have access to drugs of addiction and the community is entitled to rely on the integrity and professional expertise of medical practitioners to avoid creating drug addicts and to avoid feeding the habits of drug addicts. This is not necessarily an easy task, but there are well-recognised protocols for the administration of drugs of addiction and well-recognised resources to assist medical practitioners in treating their patients. The respondent clearly failed in all of these areas and did not display any initiative or insight in meeting the challenge which she says she perceived she had when dealing with this cohort of patients. This is a most serious matter and calls into question the ability of the respondent generally to practice medicine safely." 1. The New South Wales Court of Appeal has also made pronouncements to similar effect in Spicer v New South Wales Medical Board & Ors (unreported) Thursday 19/02/1981) where Hope JA, with whom Reynolds and Hutley JJ agreed observed (at 5, 6): "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner."41In view of the admissions that were made by the respondent to all particulars, the parties have reached agreement upon what they regard as the appropriate disability sanction to be applied for the future practice of the respondent. In formulating the conditions sought by the applicant, the applicant is taken into consideration its conclusion that the inappropriate prescribing of drugs and poor record-keeping has resulted from inexperience rather than from deliberate and wilful conduct. 1. The Tribunal has had regard to the written submissions of each party concerning conditions sought by the applicant, including a condition that category B supervision should be imposed. The respondent urges the Tribunal to impose instead category C supervision. However, the Tribunal is satisfied that category B supervision is necessary for the future protection of the public. In reaching this conclusion, it has taken into consideration the inexperience of the respondent and the gross overprescribing by the respondent to his patients. The Tribunal considers that the sanction proposed by the applicant and the proposed conditions upon the future practice of the respondent are appropriate and will accordingly formulate its orders. Costs 1. The applicant seeks an order that the respondent pay its costs as agreed or assessed. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah (2013) NSWCA 342 at [42] – [46] has established the principle that costs in such circumstances should usually be paid by a respondent. The Tribunal considers that there is no reason why such an order should not be made pursuant to Schedule 5D, cl 13 of the National Law that the respondent pay such costs, and the Tribunal will make an order accordingly. 2. The Tribunal noted that many thousands of pages were prepared by the applicant, most of which were not referred to. In these circumstances, by agreement, the parties have agreed that the respondent shall be only liable to pay the amount of $2,000 in respect of photocopying as part of the costs order to be made. Orders 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: 1. The respondent is reprimanded 2. The conditions set out in paragraphs (i) to (ix) below are imposed on the practitioner's registration 1. 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): 1. where the patients and patient records are shared between the medical practitioners; and 2. where there is always one other registered medical practitioner on site. 1. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 Drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 3. 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: 1. Prescribing. 2. Patient management and assessment. 3. Dealing with difficult and demanding patients. 4. Medical Record keeping. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the Tribunal's decision. 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. 3. To undertake an ethics course as approved by the Medical Council of NSW. 4. To complete within 6 months of the date of the Tribunal's orders the 'National Prescribing Curriculum (NPC)' organised by NPS MedicineWise. 1. Within 1 month the respondent must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. 2. Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. 3. 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. 1. The respondent is to participate in a recognised pathway to achieving Fellowship of the Royal Australian College of General Practitioners (RACGP). 1. The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW) 1. 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. 2. 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 Patient A to Patient G inclusive. Schedule a Particulars of Complaint One Particulars 1, 2, 3, 4, 5, 7, 8, 9, 11, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30 and 31 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) individually or in any combination with the other particulars. Particulars 6, 10, 12, 13, 14, 16 and 29 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) only in combination with other particulars. All of the particulars are relied upon in the alternative, individually or in combination with other particulars, as other improper conduct for the purposes of section 139B(1)(l). Patient A 1. The practitioner's prescribing for Patient A of the Schedule 8 drug oxycodone between 14 October 2015 and 15 March 2018 as set out in Annexure A: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 2. The practitioner's prescribing for Patient A of the Schedule 4D drug diazepam between 14 October 2015 and 15 March 2018 as set out in Annexure A, when viewed together with the practitioner's prescribing for Patient A of the Schedule 8 drug oxycodone as set out in particular 1: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR (b) otherwise was not clinically indicated or appropriate in the patient's circumstances, having regard to the quantities of diazepam prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 3. Between 25 April 2016 and 15 March 2018, the practitioner prescribed for Patient A the Schedule 8 drug oxycodone as set out in Annexure A in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 13 April 2016, the practitioner held an opinion that Patient A was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. Patient B 4. The practitioner's prescribing for Patient B of the Schedule 8 drug oxycodone between 13 February 2017 and 15 July 2018 as set out in Annexure B: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 5. The practitioner's prescribing for Patient B of the Schedule 4 drug quetiapine between 21 July 2016 and 2 September 2018 as set out in Annexure B: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of quetiapine prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 6. The practitioner's prescribing for Patient B of the Schedule 8 drug alprazolam between 13 February 2017 and 15 July 2018 as set out in Annexure B, when viewed together with the practitioner's prescribing for Patient B of the Schedule 8 drug oxycodone as set out in particular 4: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of alprazolam prescribed and the frequency and duration of prescribing by the practitioner. 7. Between 8 June 2017 and 15 July 2018, the practitioner prescribed for Patient B the Schedule 8 drug oxycodone as set out in Annexure B in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 8 June 2017, the practitioner held an opinion that Patient B was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. 8. Between 16 January 2016 and 16 July 2018, the practitioner prescribed for Patient B the Schedule 8 drug alprazolam as set out in Annexure B in circumstances in which: (a) alprazolam was a type B drug of addiction within the meaning of section 28(6) of the PTGA and clause 123 of the PTGR; (b) the alprazolam was for continuous therapeutic use by Patient B for a period exceeding two months; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(2) of the PTGA. Patient C 9. The practitioner's prescribing for Patient C of the Schedule 8 drug oxycodone between 24 October 2015 and 26 August 2018 as set out in Annexure C: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 10. The practitioner's prescribing for Patient C of the Schedule 4D drug diazepam between 24 August 2017 and 12 August 2018 as set out in Annexure C: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner. 11. Between 10 March 2018 and 26 August 2018 the practitioner prescribed for Patient C the Schedule 8 drug oxycodone as set out in Annexure C in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 9 March 2018, the practitioner held an opinion that Patient C was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. Patient D 12. The practitioner's prescribing for Patient D of the Schedule 8 drug oxycodone between 10 February 2017 and 3 September 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 13. The practitioner's prescribing for Patient D of the Schedule 8 drug fentanyl between 3 December 2016 and 26 August 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 14. The practitioner's prescribing for Patient D of the Schedule 4D drug diazepam between 1 April 2017 and 2 September 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner. 15. The practitioner's prescribing for Patient D of the Schedule 4 drug methoxyflurane between 22 April 2017 and 5 September 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner. 16. Between 22 July 2017 and 12 August 2018, the practitioner intramuscularly administered to Patient D or supervised the administration to Patient D of the Schedule 8 drug morphine as set out in Annexure D, where the duration and frequency of the administration: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances. 17. Between 22 April 2017 and 5 September 2018, the practitioner prescribed for Patient D the Schedule 4 drug methoxyflurane as set out in Annexure D in circumstances in which: (a) another medical practitioner at the Practice had referred Patient D to the Pain Clinic at St Vincent's Hospital Sydney ("Pain Clinic"); (b) on 6 October 2016, a Pain and Rehabilitation Registrar at the Pain Clinic had written to the other practitioner to the effect that, among other things, Patient D's ongoing use of methoxyflurane was not warranted; (c) the practitioner was aware of that advice; and (d) the practitioner was not familiar with methoxyflurane. Patient E 18. The practitioner's prescribing for Patient E of the Schedule 8 drugs oxycodone and oxycodone combined with naloxone (Targin), the Schedule 4D drugs clonazepam, temazepam, diazepam, nitrazepam and oxazepam, and the Schedule 4 drug tramadol, between 19 February 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of those drugs prescribed by the practitioner. 19. The practitioner's prescribing for Patient E of the Schedule 8 drug oxycodone between 19 February 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of oxycodone prescribed and the frequency and duration of prescribing by the practitioner. 20. The practitioner's prescribing for Patient E of the Schedule 8 drug oxycodone combined with naloxone (Targin) between 19 February 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of Targin prescribed and the frequency and duration of prescribing by the practitioner. 21. The practitioner's prescribing for Patient E of the Schedule 4D drug diazepam between 29 October 2016 and 30 August 2018 as set out in Annexure E: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner. 22. The practitioner's prescribing for Patient E of the Schedule 4 drug tramadol between 27 April 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of tramadol prescribed and the frequency and duration of prescribing by the practitioner. Patient F 23. The practitioner's prescribing for Patient F of the Schedule 8 drug oxycodone between 13 April 2016 and 13 August 2018 as set out in Annexure F: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 24. The practitioner's prescribing for Patient F of the Schedule 4D drug diazepam between 27 April 2016 and 14 June 2018 as set out in Annexure F, when viewed together with the other drugs that the practitioner was prescribing for Patient F: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of diazepam prescribed and the duration of prescribing by the practitioner. 25. Between 19 August 2018 and 3 September 2018, the practitioner prescribed for Patient F the Schedule 8 drug fentanyl as set out in Annexure F in dosages that, having regard to the oral Morphine Equivalent Daily Dose (oMEDD) of fentanyl being prescribed in comparison with the oxycodone it was replacing: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances. 26. Between 16 February 2017 and 13 August 2018, the practitioner prescribed for Patient F the Schedule 8 drug oxycodone as set out in Annexure F in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 16 February 2017, the practitioner held an opinion that Patient F was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. 27. Between 13 April 2016 and 13 August 2018, the practitioner notated prescriptions of restricted drugs issued to Patient F with "Reg 24" (referring to regulation 24 of the National Health (Pharmaceutical Benefits) Regulations 1960 (Cth) ("PBS Regulations")) in circumstances in which: (a) Patient F did not meet any of the circumstances specified in the PBS Regulations as permitting the supply of multiple repeats on one occasion; and (b) it was not otherwise clinically indicated or appropriate to supply multiple repeats at one time to Patient F. Patient G 28. The practitioner's prescribing for Patient G of the Schedule 4D drug diazepam between 17 August 2017 and 2 September 2018 as set out in Annexure G: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically indicated or appropriate in the patient's circumstances, having regard to the quantities of diazepam prescribed and the duration of prescribing by the practitioner. 29. The practitioner's prescribing for Patient G of the Schedule 8 drug oxycodone between 21 January 2018 and 2 September 2018 as set out in Annexure G: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically indicated or appropriate in the patient's circumstances, having regard to the duration of prescribing by the practitioner. 30. On 2 February 2018, the practitioner prescribed for Patient G the Schedule 8 drug methadone as set out in Annexure G, which: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically indicated or appropriate in the patient's circumstances. 31. Between 21 January 2018 and 2 September 2018, the practitioner prescribed for Patient G the Schedule 8 drug oxycodone as set out in Annexure G in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 14 October 2017, the practitioner held an opinion that Patient G was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. ********** 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: 08 March 2022