Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Javaheri [2022] NSWCATOD 162 Hearing dates: 14 - 16 November 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Occupational Division Before: M Le Poer Trench ADCJ (Principal Member) Professor A Demirkol (Senior Member) Dr H Haikal-Mukhtar (Senior Member) D Telford (General Member) Decision: (1) Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law (the National Law) Dr Javaheri (the practitioner) is reprimanded. (2) Pursuant to section 149A(1)(b) of the National Law the Tribunal directs that the following Conditions be imposed on the practitioner's registration: Practice Conditions (a) Until such time as the practitioner has completed the education condition set out in these conditions he is not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). (b) The practitioner is to forthwith provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug. (c) Until such time as the practitioner has completed the education condition set out in these conditions he is not to possess, supply, administer or prescribe any benzodiazepine derivatives including those separately specified in the Schedules of the Poisons Standard. (d) To practise under category C 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. (e) At each supervision meeting the practitioner is to review and discuss his practise of medicine with his approved supervisor with particular focus on: (i) Prescribing, including the prescribing of any Schedule 8 and Schedule 4 Appendix D medications (ii) Clinical reasoning (iii) Medical record keeping - including a review of 6 patient records from the preceding month, selected at random by the supervisor (iv) Medico-legal issues and requirements (f) The practitioner is to authorise the Medical Council of NSW to provide approved supervisors with a copy of the decision which imposed this condition. Education Conditions (a) To complete within 12 months of the date of this order, the "Issues in General Practice Prescribing" course organised by Monash University. (b) Within 1 month of the date of this order he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. (c) Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (d) To bear responsibility for any costs incurred in meeting this condition. (e) In the event that the "Issues in General Practice Prescribing" course is unavailable, he 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 this order. (f) The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. (g) Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. (3) The parties are within 21 days of the publication of this determination to take steps to negotiate the order for costs which might be made in this matter. If they are able to agree upon an order which might be made they are to provide to the registry of the Tribunal a minute of consent order with request that the order be made. In the event they are unable to agree they are each to provide to the registry and to the other, a written submission (restricted to 4 A4 pages) and a minute of the order sought on or before 16 January 2023. Catchwords: HEALTH – medical practitioners – disciplinary proceedings – unsatisfactory professional conduct and professional misconduct – Protective Orders – Reprimand and conditions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Attia v Health Care Complaints Commission Complaints Commission [2017] NSWSC 1066 Dawson v Law Society of New South Wales [1989] NSWCA 58 Health Care Complaints Commission v Dowla (2) [2019] NSWCATOD 156 Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102 Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Health Care Complaints Commission Complaints Commission v Khalighimonfared [2022] NSWCATOD 78 Health Care Complaints Commission v Lord [2019] NSWCATOD 182 Health Care Complaints Commission v Ochoa [2022] NSWCATOD 32 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Health Care Complaints Commission Complaints Commission v Sare [2018] NSWCATOD 190 Health Care Complaints Commission Complaints Commission v Yildirim [2021] NSWCATOD 146 NSW Bar Association v Meakes [2006] NSWCA 340 Office of Local Government v Toma [2015] NSWCATOD 21 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hossein Javaheri (Respondent) Representation: Counsel: A Britt (Applicant) R Mathur SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/00171469 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of any person identified as a patient or former patient of the Respondent. Reasons for decision 1. The Health Care Complaints Commission (HCCC or Applicant) proceeds on the Amended Complaint (the Complaint) filed in the Tribunal on 15 November 2022 and marked in this determination as exhibit A3. 2. The Complaint alleges conduct on the part of Dr Hossein Javaheri (the Respondent) which is unsatisfactory professional conduct pursuant to sections 139B(1)(a), and 139B(1)(l) together with professional misconduct, pursuant to section 139E of the Health Practitioner Regulation National Law (NSW) (the National Law). 3. The Respondent has admitted he is guilty of unsatisfactory professional conduct as set out in s 139B(1)(a) of the National Law. The Respondent denies he is guilty of unsatisfactory professional conduct as defined by s 139B(1)(l) of the National Law. 4. The Respondent admits he is guilty of professional misconduct pursuant to s 139E of the National Law. 5. The Amended Complaint sets out 10 individual complaints. Complaints One to Nine allege unsatisfactory professional conduct. Those complaints are as follows: BACKGROUND TO ALL COMPLAINTS The practitioner was born on [redacted date]. He completed his medical degree (Doctor of Medicine) at Iran University of Medical Sciences in 1998. Between 1998 and 2002, the practitioner worked in several hospitals in Tehran and practised as a general practitioner with the Iranian Army. The practitioner migrated to the United Kingdom in 2002, where he worked in several hospitals, specialising in orthopaedics, adult psychiatry, geriatric and paediatric medicine. The practitioner attained membership to the Royal College of General Practitioners in 2008 and began working as a general practitioner in the UK at that time until he moved on Australia in 2011. The practitioner attained specialisation as a general practitioner in Australia on 14 January 2011 and is a fellow of the Royal Australian College of General Practitioners. The practitioner commenced employment as a general practitioner at Penrith Medical Centre ("the Medical Centre") in March 2011, and remained there until June 2020 when he commenced work at Our Medical Home, Penrith. Complaint One Particular 1: During the period from approximately 1 February 2018 to approximately late 2019 the practitioner failed to properly inform himself of the legal requirements under the Poisons & Therapeutic Goods Act 1966 ("the PTGA") and the Poisons & Therapeutic Goods Regulation 2008 ("the PTGR") concerning the prescribing of Schedule 8 drugs of addiction and in particular, the authority provisions in Division 2 of the PTGA, prior to prescribing drugs of addiction to his patients at the Medical Centre. Complaint Two: BACKGROUND TO COMPLAINTS 2 & 2A Patient A was a 51-year-old male drug dependent patient with a reported history of nightmares and panic attacks. Patient A first saw the practitioner on 17 December 2013. The particulars of this complaint relate to a period of time in the practitioner's therapeutic relationship with Patient A, namely between February 2018 and June 2020. PARTICULARS OF COMPLAINT 2 1. The practitioner prescribed the Schedule 4D drug diazepam to Patient A on the dates and quantities as set out in Schedule A: a. without conducting an assessment of Patient A in relation to the need for and the risk of prescribing an addictive medication, with potential side effects; b. without conducting an assessment for anxiety or depression, or obtaining an assessment of the same by a mental health care professional. 2. The practitioner inappropriately prescribed diazepam on the dates and in the quantities set out in Schedule A, in a quantity that was excessive. 3. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient A, and circumstances indicating Patient A was engaging in drug seeking behaviour, including: a. Patient A requesting a drug without obvious current need; b. Patient A's reports of other doctors being unavailable on multiple occasions; c. The volume of tablets prescribed and dispensed exceeded the number Patient A was supposed to be taking; d. Patient A admitting to seeing other doctors, when he had previously claimed that was not the case; e. Patient A denying he was taking medications prescribed by other doctors, when he had previously told the practitioner he was taking a medication not prescribed by the practitioner. 4. The practitioner failed to make appropriate and timely referrals of Patient A to specialist assistance, including referral to a psychologist to address the issue of possible drug dependence and/or to address the possible psychological reasons for requesting a benzodiazepine. 5. The practitioner continued to prescribe diazepam to Patient A in circumstances where the practitioner was aware Patient A was not complying with the dose prescribed. 1. The HCCC included Complaints numbered 2A, 3A, 4A, 5A, 6A, 7A, 8A. Each of the complaints alleged unsatisfactory professional conduct pursuant to s 139(1)(b) of the National Law arising from contravention of the Health Practitioner Regulation (New South Wales) Regulation 2016. Each addressed the records made by the Respondent in relation to the patient who was the subject of the complaint set out immediately before the "A" numbered complaint contravened the Health Practitioner Regulation (New South Wales) Regulation 2016. As an example, we set out the particulars for Complaint 2A PARTICULARS OF COMPLAINT 2A 1. The practitioner failed to maintain adequate medical records for Patient A in accordance with the requirements of r 6 of the Regulation in that the records lacked adequate detail about: a. Relevant clinical findings or opinions, including about Patient A's possible drug dependency; b. Treatment plan/s for Patient A, including for pain management and reduction of addictive medication in conjunction with a pain specialist; c. Information or advice given to Patient A, including about the risks of addictive medications, in circumstances where Patient A was being prescribed an addictive medication. 1. The complaints numbered 3 to 10 provided the following backgrounds and particulars. BACKGROUND TO COMPLAINTS 3 & 3A Patient B was a 39-year-old female drug dependent patient with a reported history of anxiety, depression, pelvic pain, pain resulting from a catheter insertion, pain associated with endometriosis, and other undisclosed pain. Patient B first consulted with the practitioner on 22 October 2012. The particulars of this complaint relate to a period of time in the practitioner's therapeutic relationship with Patient B, namely between January 2018 and June 2019. PARTICULARS OF COMPLAINT 3 1. The practitioner prescribed the Schedule 8 drugs alprazolam and tapentadol; and the Schedule 4 drug diazepam to Patient B on the dates and quantities as set out in Schedule B, without: a. conducting an appropriate assessment of Patient B in relation to the need for prescribing addictive medications, including risks and potential side effects, and discussion of alternatives with Patient B; b. conducting a formal clinical examination on each occasion when Patient B requested analgesia for a specified physical issue; c. conducting a formal assessment for anxiety or depression, or obtaining an assessment of the same by a mental health care professional; d. a formal plan for pain management and reduction of addictive medication in conjunction with a pain specialist. 2. The practitioner prescribed the Schedule 8 drugs alprazolam and tapentadol Patient B on the dates and quantities as set out in Schedule B not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 79 of the PTGR. 3. The practitioner prescribed the Schedule 4D drug diazepam to Patient B on the dates and quantities as set out in Schedule B not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 34 of the PTGR. 4. The practitioner inappropriately prescribed alprazolam, tapentadol and diazepam concurrently to Patient B on the dates and quantities as set out in Schedule B. 5. The practitioner prescribed Schedule 8 drugs to Patient B on the dates and quantities as set out in Schedule B in circumstances where: the practitioner was aware that Patient B was a drug dependent person; and the practitioner did not obtain the proper authority from NSW Ministry of Health, contrary to section 28(3) of the PTGA. 6. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient B, and circumstances indicating Patient B was engaging in drug seeking behaviour, including: a. Patient B having seen multiple doctors at the same practice, and a notation was previously made signalling caution was required with analgesic drugs in relation to the patient; b. A letter on Patient B's clinical file noted her addiction to medication; c. A file note on Patient B's clinical file noted her extensive history of use of analgesic drugs; d. Patient B's immediate and repeated requests for analgesic drugs at the commencement of the practitioner's therapeutic relationship, including in circumstances where there was no obvious physical cause of pain; e. Patient B's requests for other drugs including benzodiazepines; f. Patient B's request to replace a previously prescribed benzodiazepine ("Mogadon") with a sedative-hypnotic drug ("Stilnox"); g. The involvement of multiple doctors in relation to Patient B's pain management; h. Varying reasons for Patient B requiring drugs of dependence across multiple consultations; i. Reported failure of prescribed medications to control Patient B's pain despite multiple medications being prescribed, including medications requested by Patient B; j. Patient B exhausting her prescriptions early; k. Patient B reportedly losing medications; l. Patient B reportedly failing to collect prescriptions; m. Patient B requesting an additional prescription for travel; n. Patient B requesting an additional prescription for a holiday period; o. Patient B denying she was seeing other doctors, which was subsequently shown to be untrue. 7. The practitioner inappropriately continued to prescribe Schedule 8 drugs, including by private prescription, to Patient B despite Patient B exhibiting the drug-seeking behaviours in particular 6. 8. The practitioner failed to provide appropriate follow-up on Patient B's attendance to specialist appointments, or take action on feedback obtained from specialist referrals, when referrals were made. The conduct in any of Particulars 1, 2, 3, 4, 5, 6 and/or 7 of Complaint 3 is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. BACKGROUND TO COMPLAINTS 4 & 4A Patient C was a 45-year-old male drug dependent patient, with a reported history of depression, anxiety, panic attacks, and pain from an ankle injury. Patient C first consulted with the practitioner on 11 January 2012. The particulars of this complaint relate to a period of time in the practitioner's therapeutic relationship with Patient C, namely between March 2018 and August 2019. PARTICULARS OF COMPLAINT 4 1. The practitioner prescribed the Schedule 8 drug alprazolam to Patient C on the dates and in the quantities as set out in Schedule C not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 34 of the PTGR. 2. The practitioner prescribed Schedule 8 drugs to Patient C on the dates and quantities as set out in Schedule C in circumstances where: (a) the practitioner was aware that Patient C was a drug dependant person; and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health contrary to section 28(3) of the PTGA. 3. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient C, and circumstances indicating Patient C was engaging in drug seeking behaviour, including: a. Patient C requesting a benzodiazepine at an early stage in the therapeutic relationship; b. Patient C declining to cease using diazepam ("Valium"); c. Patient C having a history of addiction, and admitting his brother is a drug addict; d. Patient C experiencing a sequence of minor injuries and psychiatric reasons for requesting benzodiazepines, and requesting them from two doctors; e. Patient C admitting to increasing his daily self-dosing of prescribed diazepam and exhausting the prescription early; f. Patient C exhibiting behaviour consistent with doctor-shopping; g. Patient C reporting a high number of minor injuries; h. Patient C requesting additional medication for travel. 4. The practitioner inappropriately continued to prescribe Schedule 8 drugs by private prescription to Patient C despite Patient C exhibiting the drug-seeking behaviours in particular 3. 5. The practitioner failed to provide appropriate and timely referrals for specialist assistance for Patient C. The conduct in any of Particulars 1, 2, 3, 4 and/or 5 of Complaint 4 is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. BACKGROUND TO COMPLAINTS 5 & 5A Patient D was a 48-year-old female drug dependent patient, with a reported history of anxiety, depression, and various kinds of pain in various areas. Patient D first consulted with the practitioner on 24 May 2013. The particulars of this complaint relate to a period of time in the practitioner's therapeutic relationship with Patient D, namely between March 2018 and June 2020. PARTICULARS OF COMPLAINT 5 1. The practitioner prescribed the Schedule 8 drugs alprazolam and tapentadol and the Schedule 4 D drug oxazepam, to Patient D on the dates and in the quantities as set out in Schedule D, without: a. conducting an assessment of Patient D in relation to the need for prescribing an addictive medication, including risks and potential side effects, and discussion of alternatives with Patient D in circumstances where the practitioner knew Patient D to be receiving methadone treatment; b. conducting a formal assessment for anxiety or depression, or obtaining an assessment of the same by a mental health care professional; c. a formal plan for pain management and reduction of addictive medication in conjunction with a pain specialist. 2. The practitioner prescribed the Schedule 8 drugs alprazolam and tapentadol to Patient D on the dates and quantities as set out in Schedule D not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 79 of the PTGR. 3. The practitioner prescribed the Schedule 4D drug oxazepam to Patient D on the dates and in the quantities as set out in Schedule D not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 34 of the PTGR. 4.The practitioner inappropriately prescribed alprazolam and tapentadol concurrently, and concurrently with oxazepam, to Patient D on the dates and in the quantities as set out in Schedule D. 5. The practitioner prescribed Schedule 8 drugs to Patient D on the dates and quantities as set out in Schedule B in circumstances where: (a) the practitioner was aware that Patient D was a drug dependent person; and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health contrary to section 28(3) of the PTGA. 6.The practitioner inappropriately prescribed alprazolam, tapentadol and oxazepam, concurrently with other drugs such as codeine ("Panadeine Forte"), mirtazapine, quetiapine ("Seroquel"), lorazepam ("Ativan"), to Patient D on the dates and in the quantities as set out in Schedule D. 7. The practitioner failed to respond appropriately to drug seeking behaviours, and circumstances indicating Patient D was engaging in drug seeking behaviour, including: a. Patient D requesting prescriptions at a rate which exceeded the need for more medication; b. Patient D's reasons for needing the medication were inadequate for the dose frequency and combination of medications subsequently prescribed; c. Patient D's multiple reports that non-narcotic analgesics do not work; d. Patient D's request for extra prescriptions during a holiday period; e. Reduction of the use of medications never occurred despite discussions about reduction in use; f. Patient D's continued requests for addictive medications. 8. The practitioner inappropriately continued to prescribe alprazolam, a Schedule 8 drug, by private prescription, to Patient D despite Patient D exhibiting the drug seeking behaviours in particular 7. 9. The practitioner failed to make adequate appropriate and timely referrals of Patient D to specialist assistance, and when referrals were made, failed to provide appropriate follow-up of those referrals and ensure assistance was rendered or implemented by him. BACKGROUND TO COMPLAINTS 6 & 6A Patient E was a 51-year-old male patient, with a history of pain associated with systemic lupus erythematosus. Patient E first consulted with the practitioner on 9 September 2014. The particulars of this complaint relate to a period of time in the practitioner's therapeutic relationship with Patient E, namely between March 2018 and September 2019. PARTICULARS OF COMPLAINT 6 1. The practitioner prescribed the Schedule 8 drug oxycodone and the Schedule 4 D drug diazepam to Patient E on the dates and in the quantities as set out in Schedule E, without: a. conducting an assessment of Patient E in relation to the need for prescribing an addictive medication, including risks and potential side effects, and discussion of alternatives with Patient E; b. conducting a formal clinical examination on each occasion when Patient E requested analgesia for a specified physical issue; c. conducting a formal assessment for anxiety or depression, or obtaining an assessment of the same by a mental health care professional; d. a formal plan for pain management and reduction of addictive medication in conjunction with a pain specialist. 2. The practitioner prescribed the Schedule 8 drug oxycodone to Patient E on the dates and in the quantities as set out in Schedule E not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 79 of the PTGR. 3. The practitioner prescribed the Schedule 4D drug diazepam to Patient E on the dates and in the quantities as set out in Schedule E, not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 34 of the PTGR. 4. The practitioner inappropriately prescribed diazepam and oxycodone concurrently on the dates and in the quantities as set out in Schedule E. 5. The practitioner prescribed Schedule 8 drugs to Patient E on the dates and quantities as set out in Schedule E in circumstances where: (a) the practitioner was aware that Patient E was a drug dependent person; and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health contrary to section 28(3) of the PTGA. 6. The practitioner inappropriately prescribed diazepam and oxycodone to Patient E concurrently with other drugs such as oxazepam and codeine ("Panadeine Forte") on the dates and in the quantities as set out in Schedule E. 7. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient E, and circumstances indicating Patient E was engaging in drug seeking behaviour, including: a. Patient E requesting a narcotic at an early stage in the therapeutic relationship; b. Patient E requesting prescriptions of diazepam at a rate which exceeded the prescribed dose of diazepam; c. Patient E failing to attend follow-up appointments with a rheumatologist on referral; d. Patient E ceasing to attend appointments with a psychologist on referral. 8. The practitioner inappropriately continued to prescribe oxycodone, a Schedule 8 drug, including by private prescription, to Patient E despite Patient E exhibiting the drug seeking behaviours in particular 7. BACKGROUND TO COMPLAINTS 7 & 7A Patient F was a 41-year-old male drug dependent patient, with a reported history of anxiety and back pain. Patient F first consulted with the practitioner on 11 September 2012. The particulars of this complaint relate to a time in the practitioner's therapeutic relationship with Patient F, namely between February 2019 and March 2020. PARTICULARS OF COMPLAINT 7 1. The practitioner prescribed diazepam to Patient F on the dates and in the quantities as set out in Schedule F not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 79 of the PTGR. 2. The practitioner inappropriately prescribed diazepam concurrently with codeine ("Panadeine Forte"), mirtazapine, and tramadol, on the dates and in the quantities as set out in Schedule F. 3. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient F, and circumstances indicating Patient F was engaging in drug seeking behaviour, including: a. Patient F requesting addictive drugs at an early stage in the therapeutic relationship; b. Patient F admitting to acquiring methadone off the street; c. Patient F having subjective reasons for needing the drugs requested; d. An increasing number of addictive drugs being requested by Patient F; e. Patient F requesting prescriptions in advance of when they are purportedly needed; f. Patient F requesting an increased dose of drugs prescribed; g. The number of tablets dispensed exceeded the number of tablets prescribed; h. Patient F requesting medication in advance of travelling to a different location; i. Patient F requesting more medication due to theft of medication; j. Patient F advising the practitioner he wished to avoid non-narcotic analgesia. 4. The practitioner failed to make adequate appropriate and timely referrals of Patient F to specialist assistance. BACKGROUND TO COMPLAINTS 8 & 8A Patient G was a 39-yearold male drug dependent patient, with a reported history of pain in the face. Patient G first consulted with the practitioner on 30 August 2016. The particulars of this complaint relate to a period of time in the practitioner's therapeutic relationship with Patient G, namely between April 2018 and March 2020. PARTICULARS OF COMPLAINT 8 1. The practitioner prescribed the Schedule 8 drug oxycodone to Patient G on the dates and in the quantities as set out in Schedule G, without: a. conducting an assessment of Patient G in relation to the need for prescribing an addictive medication, including risks and potential side effects, and discussion of alternatives with Patient G; b. conducting a formal clinical examination on each occasion when Patient G requested analgesia for a specified physical issue; c. conducting a formal assessment for anxiety or depression, or obtaining an assessment of the same by a mental health care professional; d. a formal plan for pain management and reduction of addictive medication in conjunction with a pain specialist. 2. The practitioner prescribed the Schedule 8 drug oxycodone to Patient G on the dates and in the quantities as set out in Schedule G not in accordance with an accepted therapeutic purpose and in excessive quantities, contrary to clause 79 of the PTGR. 3. The practitioner prescribed Schedule 8 drugs to Patient G on the dates and quantities as set out in Schedule G in circumstances where: (a) practitioner was aware that Patient G was a drug dependent person; and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health, contrary to section 28(3) of the PTGA. 4. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient G, and circumstances indicating Patient G was engaging in drug seeking behaviour, including: a. Patient G requesting narcotic analgesia at an early stage in the therapeutic relationship after three years of discomfort from a historic injury; b. Patient G requesting additional oxycodone because his general practitioner was not available, and thereby admitting to seeking oxycodone from two different doctors; c. Patient G requesting additional oxycodone om advance of when they are purportedly needed, including because of his plans to travel and/or relocate; d. Patient G's failure to attend an appointment made at a pain clinic; e. Patient G's presentation with varied reasons for requests for oxycodone. 5. The practitioner inappropriately continued to prescribe oxycodone, a Schedule 8 drug, including by private prescription, to Patient G despite Patient G exhibiting the drug seeking behaviours in particular 4. 6. The practitioner failed to make adequate appropriate and timely referrals of Patient G to specialist assistance. PARTICULARS OF COMPLAINT 9 1. The practitioner inappropriately self-prescribed testosterone ("Testogel"), roxithromycin ("Rulide"), cephalexin ("Keflex") and oseltamivir ("Tamiflu") on the dates and in the quantities as set out in Schedule H; 2. Between 19 October 2018 and 2 June 2020, the practitioner inappropriately referred himself for pathology testing and ultrasounds. 3. By his conduct in particulars 1 and 2, the practitioner breached principle 2 of the general principles endorsed by the Medical Council of NSW in relation to self-treatment and treating family members in its Guideline for self-treatment and treating family members (2 December 2014). 1. The HCCC alleged in Complaint Ten that the Respondent was guilty of professional misconduct as set out in s 139E of the National Law. It relied on the Background facts and Particulars which had been set out in the Complaints from 1 to 9, including those complaints with the letter "A" attached. 2. The Respondent filed his Reply to Application for Disciplinary Findings on 13 October 2022. In that document he admits he is guilty of unsatisfactory professional conduct as defined by s 139B(1)(a). He denied he is guilty of conduct defined in s 139B(1)(l). He admitted the Particulars and Background to Complaints 1 to 9. He also admitted he was guilty of professional misconduct as alleged in Complaint Ten. 3. In relation to the complaints with the headings including the letter "A" (alleged breach of s 139(B)(1)(b) he denied his records in relation to each of the patients referred to in the Complaints were "generally significantly below the standard". He relied upon the evidence of Dr Levy; the expert engaged by the HCCC for this proceeding. On some occasions the expert had opined that the records of the Respondent were either below the standard or at the standard. 4. At the commencement of the hearing the Respondent's counsel challenged the inclusion, in the evidence relied upon by the HCCC, as schedules attached to the initiating Complaint document. After some consultation between the parties the HCCC sought to substitute the schedules which were admitted to evidence and marked as exhibit A2. That exhibit met no objection from the Respondent. The schedules contained detail of the prescribing by the Respondent for each of the patients specified in the Complaints. 5. The Respondent objected to the evidence contained in Volume one, Tab 21A. This is a statement of findings made by a Senior Pharmaceutical Officer at the Pharmaceutical Regulatory Unit. The HCCC, after discussion with the Respondent's counsel, sought to withdraw the document set out at TAB 21A and substitute a significantly redacted copy of same. That application was not opposed, and the redacted document became exhibit A4 in the proceeding. 6. The HCCC otherwise relied upon three volumes of material (containing over a thousand pages of documents) marked as exhibit A1 in this hearing. 7. The HCCC was granted leave during the hearing before us, to provide the "Evidentiary Certificate" from Ahpra & National Boards, when it could be obtained. That document was provided to the Tribunal by email on the final day of the hearing. It has been marked as exhibit A6 for identification. The document shows the Respondent is registered as a Medical Practitioner – Specialist (General Practice). He was first registered on 14 January 2011. 8. The HCCC also tendered a minute of the protective orders it seeks in this matter. We will refer to that document later in these reasons. The document was marked as exhibit A5. 9. The HCCC relied upon the evidence of Dr Levy as an expert witness. The report of Dr Levy is dated 2 October 2021. There is no challenge to Dr Levy's expertise. 10. Dr Levy was asked to provide general advice about the requirements for practitioners when prescribing Schedule 4 Appendix D (S4D) drugs and Schedule 8 (S8) drugs. Dr Levy identified from the records of the Respondent that he had prescribed the S8 drugs alprazolam and tapentadol. Dr Levy described the recognised clinical indications for each of those drugs. He addressed the dose which can and should be prescribed. He set out the identified risks associated with each of those drugs. He stated that prescribing each of alprazolam and tapentadol to patients with a history of drug dependence, or abuse, potentially increases the risk of addiction and/or re-addiction and criminal behaviour. He set out the physical side effects including respiratory depression and death. 11. Dr Levy addressed the risks of prescribing alprazolam and tapentadol to patients taking Methadone or buprenorphine. Dr Levy stated: "Alprazolam: Given that methadone and buprenorphine act on opioid receptors in the brain, adding the central nervous system depressant effects of alprazolam – a benzodiazepine – to the central nervous system actions of methadone and buprenorphine can lead to significant respiratory depression and the risk of death. NB: It is recognised that many opioid-dependent patients have anxiety and are also (whether prescribed or not) taking benzodiazepines. The risks are known to health professionals, but they must be weighed against the benefit of successfully weaning a patient off opioids. Tapentadol: Methadone and buprenorphine act on opioid receptors in the brain and are used to reduce dependence on – and withdrawal symptoms from – opiates (eg. heroin). Tapentadol belongs to the opioid family of drugs, also acting on the opioid receptors in the brain. Thus, the effects of using methadone or buprenorphine alongside tapentadol are additive – as are the risks, the main one of which is respiratory depression which can lead to death." 1. Dr Levy was asked what attempts should be undertaken by a GP to ascertain whether a patient is a drug dependent person when the GP is considering prescribing alprazolam and/or tapentadol. He opined: In practice, though some patients hide dependence exceedingly well, most do not. It is usually fairly clear early in the consultation – if one is looking – whether addiction is at-play. There are many tell-tale features of drug-seeking behaviour that are common across-the-board. The balance for the GP is to keep an open mind and caring attitude on one side vs. credulousness (and its resulting negative effect on the patient's overall, long-term outcome) on the other. Finding and maintaining this can be difficult but is part-and-parcel of General Practice. In summary: - A review of the patient's history in that clinic; - A detailed history taken from the patient; - Examination of the patient; do they show symptoms or signs of addiction, past or present? Examination includes listening and observing carefully during their history-giving; - If suspicious that there may be past / present addiction (or use of drugs for commercial purposes), the Prescription Shopping Program helpline should be contacted for information. 1. The HCCC asked Dr Levy to explain risks associated with diazepam and oxazepam. Dr Levy reported: "Diazepam and oxazepam are benzodiazepines and, thus, carry the same general medical risks as all the benzodiazepines, namely respiratory depression and death, addiction and tolerance. Prescribing to patients with a history of drug dependence or abuse potentially increases any – or all – of the following: 1) Addiction / Re-addiction: patients with a history of drug dependence or abuse either have an ongoing issue with addiction or an increased propensity towards one, given their past history of dependence. Access to opioids or benzodiazepines represents a specific risk of either fuelling a current addiction or serving to instigate a re-addiction. 2) Criminal Behaviour: the need to obtain drugs of abuse is linked to an increased risk of criminal behaviour to serve this purpose. Access to opioids or benzodiazepines represents a specific risk, in that the prescriptions and the drugs have 'street value' and, thus, may be on-sold. 3) Physical Side-Effects: Tapentadol is a potent opioid with the significant risk of respiratory depression and death a. Patients with drug addictions may be taking opioids or other central nervous system depressants that will increase the effect of opioids or benzodiazepines. This increases the risk of respiratory depression and death b. If on-sold by a patient with a history of drug dependence or abuse to an opioid-naïve or benzodiazepine-naïve third party, use of opioids or benzodiazepines at even relatively low doses by this person may lead to respiratory depression and death." 1. Dr Levy was asked to opine upon the adequacy and appropriateness of the clinical documentation and prescribing records. He was asked to address Dr Javaheri's medical records, the Good Medical Practice: A code of conduct for doctors in Australia (October 2020) and the Health Practitioner Regulation (NSW) Regulation 2016, Schedule 4. 2. After providing advice as to the requirements of the Code of Conduct for Doctors in Australia (October 2020) and the Health Practitioner Regulation (NSW) Regulation 2016, Schedule 4, Dr Levy opined as follows in relation to the records made by the Respondent for the cases the subject of the Complaints. He stated: "However, it should be noted that all of the above are only fleshing out the specifics of the obvious question: "Could another doctor use my notes to provide ongoing and adequate care for this patient? Clearly, it is integral to the future care for a patient that a doctor fully understands their past care. The regulations above stipulate that each and every clinical record of each patient attendance be up to the standards outlined. The reality of General Practice is that – in the case of patients who have multiple, regular attendances for the same issues – the individual clinical encounters contribute to the overall tapestry of the patient's 'story'. Expecting each-and-every consultation to tell the entire tale is illogical, impossible and probably undesirable. However, the clinical record – as a whole – must reveal all the pertinent details of that patient's past care (and should have the capacity to produce a concise summary on-demand). Even though the period of investigation is 1 March 2018 until 30 April 2021, it is reasonable to be as lenient as possible by taking the patient records in-toto whilst under Dr Javaheri's care, rather than judge every entry against the standards delineated above. Hence, earlier entries are also considered when answering this question. Overall, Dr Javaheri's are just about reasonable. They are, by no means, filled with detail and I have certainly seen better clinical notes, but they convey the essential 'story' in the majority of consultations where Dr Javaheri is seeking to do so. Although a little 'bare-bones', one could understand the nub of the patients' issues and continue their care based upon the notes. There is minimal physical examination in the clinical notes but it appears to occur again, in 'bare bones' fashion (unless more was done than was recorded) when absolutely needed. It should also be noted that this group of patients is being reviewed because of potential prescribing issues that have been highlighted. They are not a true cross-section of Dr Javaheri's likely cohort of patients, others of whom may have had better quality examinations recorded. There is exploration on several occasions with the patients regarding their drug use but often this comes across simply as narration of what the patient has told him rather than commentary or responses to probing questions on the issue. It is ineffectual 'exploration'. The prescribing record is – from the data provided – accurate. The quantities prescribed in the medical notes correlates with the volume of actual drug dispensed to each of the patients. There are a significant number of private scripts issued, however. Is this an attempt to circumvent 'the system'? Notwithstanding the accuracy described above, it should be noted that an accurate prescribing record is a function of the practice management software rather than reflecting any deliberate effort by Dr Javaheri to maintain such a record. To produce a printed prescription for the patient, the system requires the pertinent prescription details which are then reflected in the clinical record. Thus, the clinical portion of the notes by Dr Javaheri is at the standard expected of a doctor with his experience and are adequate (though not more than that) for the clinical encounters they represent. The prescribing records – by dint of the medical practice software – are adequate and at the standard expected of a doctor with Dr Javaheri's experience." 1. Dr Levy was asked to opine on whether the conduct of the Respondent fell below the standard reasonable expected of a practitioner of equivalent level of training or experience and if so, was it significantly below that standard, in relation to a number of specific statements made by the Respondent to the HCCC and in the s 150 hearing conducted in the matter by the Medical Council in November 2020. 2. Dr Levy was asked to provide his opinion on the following: 3. In Dr Javaheri's response to the Commission on 5 February 2021, he states he was not aware he required an authority to prescribe Schedule 8 medications alprazolam and tapentadol. Please provide your opinion in relation to the adequacy or otherwise of Dr Javaheri's knowledge in this respect. 1. Dr Levy provided the following response: "This explanation is wholly inadequate. The Authority script system has been in use for many, many years; it was well established before Dr Javaheri had began work. Details of the Authority script system are widely available and usually embedded in practice management software, appearing – often unprompted – when prescribing. It is also embedded in the profession's documentation, an example being the 2011 RACGP curriculum as well as the 2007 version (in case the 2011 curriculum emerged after Dr Javaheri started work). 1.5.5: "Before opioid prescriptions are written, relevant state authority must be obtained." I am not familiar with the regulations in 2011 around validating the knowledge of an overseas-trained doctor before starting work but would expect that the Australian Medical Council would have had standards that Dr Javaheri would have met. It is also likely that Dr Javaheri would – at some point and to some statutory body – given a legally-binding undertaking that he was working in compliance with health and prescribing regulations. In this case – given the obvious medical, criminal, financial and societal impacts of those drugs requiring an Authority – it is almost inconceivable that, after 7 years of General Practice, Dr Javaheri was unaware of the existence of such a system. Additionally, the explanation offered is further challenged and undermined by the letter written by the PRU in 2016 to Dr Javaheri (receipt acknowledged in s150 proceedings transcript), specifically about his transgression of the Authority system and underpinned by his clear change in behaviour, as regards Authorities, in the months following receipt of the letter (ref. Tab 10: records from ERRCD). In any event: a) being unaware of a regulation does not justify transgressing it and b) the onus will always fall onto the person entering a system – in this case Dr Javaheri entering medical practice in Australia – to learn that system, in order to comply with its rules. Dr Javaheri falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. Dr Levy was asked to provide opinion about the Respondent's statement in the s150 proceeding that he was unaware he had to wait until an authority was issued by the Ministry before he could prescribe Schedule 8 drugs. Dr Levy opined: "I reiterate my opinion in answering Q3 above. In summary: a) I find it exceedingly hard to believe that Dr Javaheri was ever unaware of the Authority system b) It is especially hard to believe that that is the case after he was notified by the PRU of an Authority transgression in 2016 and he actually applied for Authorities c) The onus is on Dr Javaheri to find out and comply with the rules of any system within which he chooses to work d) Ignorance of a regulation is not a valid defence to accusations of its transgression. This example patently portrays a disregard for the system in place to safeguard against exactly the sort of prescribing behaviour so clearly exemplified by Dr Javaheri. Dr Javaheri falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. In relation to the Complaint 9 relating to self-prescribing and self-referral. Dr Levy opined that the conduct of the Respondent was below the standard however, not significantly so. He said: "All of the prescriptions and self-referrals look mostly like issues of convenience; it was simply quicker and simpler to write them for himself than go via the proper channels. All of the prescriptions and referrals might have been described as 'reasonable' had they not been done by Dr Javaheri for Dr Javaheri. It should also be noted that NSW gives guidance as to self-prescribing and self-referrals and the direct rules governing self-prescribing centre around S4 and S8 drugs. Even then there appears to be exception for legitimate self-treatment. There appears to be no direct breach of legislation, given the nature of the medications involved and assuming the background to the (restricted) testosterone – as delineated by Dr Javaheri – is accurate. However, in the final analysis, the guidance is clear that – excepting unusual circumstances – self-prescribing and self-referral is strongly discouraged. This is held to be the standard of practise expected. It was Dr Javaheri's responsibility to know, understand and comply with this guidance and meet this standard, which he did not do." 1. The HCCC then asked Dr Levy to provide his opinion in relation to the patients who were the subject of Complaints 2 to 8. The patients are given the pseudonyms of "A" to "G" in the Complaint Application document. In relation to Complaint Two and the Patient "A", the HCCC asked Dr Levy to advise on: "The standard reasonably expected of a practitioner of an equivalent level of training or experience." Whether he considered Dr Javaheri's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and if so If Dr Javaheri's conduct did fall below the relevant standard, whether he considered the departure to be significantly below the standard." 1. The facts provided to Dr Levy in relation to Patient A are: "Patient A is a 51-year-old, drug dependent person, with a current authority issued to a medical practitioner in 2007 to prescribe methadone for the purposes of the NSW OTP. This authority is not issued to Dr Javaheri. Patient A commenced consultations with Dr Javaheri on 17 December 2013, however, he did not see Dr Javaheri again until 16 May 2016, seeing him a further two times in 2016. Patient A did not see Dr Javaheri again until 22 February 2018 where he continued to see Dr Javaheri monthly until June 2020. Clinical records for Patient A, provided by the Medical Centre, indicate when Patient A initially commenced seeing Dr Javaheri back in 2013 and again in 2016, he was requesting Xanax as he was suffering nightmares and panic attacks since the death of his brother and he was unable to obtain it from his regular doctor." 1. Dr Levy stated: "Dr Javaheri should have undertaken an assessment of the need for and the risk of prescribing and addictive medication, with potential side effects. An assessment of anxiety or depression would have been appropriate or, at the very least, an inclusion of a mental healthcare professional's assessment of the same. There seems to have been no discussion with the patient regarding the risks of taking a benzodiazepine. In my view, in general, the notes should have reflected consideration of: a) an assessment of the specific need(s) for prescribing and addictive medication with an indication that alternative avenues were considered b) a formal clinical examination + findings, where appropriate and on each occasion thereafter, when the patient requested analgesia for a specified physical issue c) a formal assessment of anxiety or depression would have been appropriate or, at the very least, an inclusion of a mental healthcare professional's assessment of the same d) an assessment of the risk(s) of prescribing and addictive medications, vis a vis their potential side effects e) a formal plan for pain management and reduction of addictive medication, in conjunction with pain specialist(s). 1. Dr Levy opined the conduct of the Respondent "fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience." He did not find that it was conduct "significantly below" the standard. 2. Dr Levy was asked whether he considered the Respondent had prescribed for Patient A in an appropriate quantity. He advised: Within the period of time at which we are looking, the quantity appears excessive. Although Patient A is prescribed one 5 mg diazepam tablet daily, when required, he is issued with a prescription for 50 tablets monthly, or – often – more frequently than that. The dispensing record at Penrith Discount Drug Store indicates that all of these tablets were collected. Mathematically, either the patient is taking more than he is supposed to or he is disposing of the tablets in another manner, including the possibility of criminally. This should have been entirely obvious and the issue addressed. Dr Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Dr Levy was asked if the Respondent responded appropriately to drug seeking behaviours in Patient A. Did Dr Levy consider Patient A was exhibiting drug seeking behaviour? 2. Dr Levy opined as follows: The tell-tale signs of drug-seeking behaviour are all across the notes. Clear indications include the lack of obvious, current need for the drug requested, the patient's reports of other doctors being unavailable on multiple occasions, the clear fact that the volume of tablets prescribed and dispensed mathematically outstripped the number that Patient A was supposed to be taking, denying seeing any other doctors in the consult of 16/5/18 but by the consult of 3/7/18 and 27/7/18, it is clear that he actually is seeing another doctor. He again denies taking any other medications from another doctor in the consult of 8/10/18, yet he is still taking Avanza (not prescribed by Dr Javaheri) in the consult of 26/4/19. In total, the veracity of Patient A's information is very clearly suspect and I would expect a GP of even the most minimal experience to have addressed the clear issue of Patient A's drug-seeking behaviour. Dr Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Dr Levy was asked if the Respondent had made timely referrals for specialist assistance. Dr Levy opines that he did not and that failure to do so meant the Respondent's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 2. Dr Levy was asked if it was appropriate for the Respondent to continue to prescribe for Patient A when he became aware Patient A was not complying with the dose prescribed? Dr Levy stated: "No. It should have been quite clear that Patient A was requesting prescriptions for diazepam far more frequently than should have been the case on the dosage prescribed. This occurred over a prolonged period of time and should have been noticed at the outset. At the very least, there should have been a documented conversation between Dr Javaheri and Patient A regarding the increased frequency of prescribing. This does not appear to have occurred. Consultations – as recorded – were basic and seemed, more often than not, to be solely for the purpose of Patient A collecting a prescription for diazepam. …..continued prescribing of the medication in question without any intervention whatsoever is incorrect. Dr Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. The HCCC then asked Dr Levy to assess the medical records the Respondent had made for Patient A. Dr Levy opined: "It is quite clear from reading the entire patient record that Dr Javaheri's notes are deficient, specifically regarding the components of the Health Practitioner Regulation 2010 / 2016, particularly in relation to parts: 1(2)(a), 1(2)(b), 1(2)(c), 1(3) & 3(1) as they relate to the prescribing of drugs of dependence for this patient. The requirement delineated by Part 3(2) is generally (just) met. In-toto, Dr Javaheri's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience." (We note the conduct is not significantly below the standard.) 1. Dr Levy then addressed the questions asked of him in relation to Patient B. The questions followed the following stated fact: "Patient B is a 38-year-old drug dependent person, with previous authorities issued for methadone and buprenorphine on the NSW OTP to medical practitioners since 2011. The most recent authorities for buprenorphine is from 7 August 2018 to 9 November 2019 and then from 19 May 2020. This authority is not issued to Dr Javaheri (see ERRCD Extract – Authorities held by Dr Javaheri at Tab 10). Patient B commenced consultations with Dr Javaheri on 22 October 2012, however, did not return to see him until a year later on 21 December 2013. After these initial consults Patient B continued to see Dr Javaheri approximately once per month until 23 May 2014. After this occasion she commenced seeing Dr Javaheri again on 3 March 2015 where she continued to see Dr Javaheri once or twice per month, on occasion three times per month, until 28 June 2019. Clinical records for Patient B, provided by the Medical Centre (see Tab 12) indicate when Patient B initially commenced seeing Dr Javaheri sporadically back in 2012, 2013 and 2014 she was suffering from anxiety, depression and required pain management for various issues, including 'pelvic pain', pain from a catheter insertion, pain from endometriosis and other undisclosed pain." 1. We will set out the evidence of Dr Levy where he opined conduct as significantly below the standard in response to the specific questions asked of him in relation to the Respondents treatment of Patient B. 2. Dr Levy was asked: Did Dr Javaheri prescribe each of the above drugs to this patient in an appropriate quantity? Dr Levy answered: "No. a) Without a clear understanding of the clinical/psychological need, it is impossible to say that a prescription was required whatsoever, let alone the dose. The notes are absent this level of detail, which undermines the entire reason for prescribing. b) However, if one accepts that there was need of these medications, it is clear that the volumes prescribed were large. c) In the period of time under scrutiny, prescriptions for benzodiazepines were issued that, mathematically (based on volume of tablets prescribed vs. dose per day), should not have been due for some time. This occurred on multiple occasions. d) Tapentadol scripts were issued (and collected from the Pharmacy) with a frequency that did not tally with dosage prescribed. Dr. Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. In answer to the question: "Was it appropriate for Dr Javaheri to prescribe each of the above drugs concurrently?" Dr Levy stated: "Both alprazolam and diazepam are benzodiazepines and, although they have differing durations of action and are, thus, more suited to different treatments, they are broadly very similar in effect and side effect profiles. Overlap of these medications would magnify their potential side-effect profile without adding any meaningful treatment benefits. Tapentadol is an opiate and works differently to benzodiazepines. It is a potent analgesic, meant for short-term use where everything else has failed. It has a significant side effect of central nervous system depression, especially those of the respiratory system. Significant depression of this can lead to respiratory arrest and death. Opiates and benzodiazepines – although working on different brain receptors – have a potentially cumulative effect with regard to central nervous system depression. Thus, the risk of respiratory depression and death increases with concomitant use of these drugs. This risk is well-recognised and, unfortunately, highlighted regularly by coronial enquiries. Although Patient B had demonstrated herself to be at somewhat reduced risk by dint of the fact that she had been on these medications for some years and had not, evidently, suffered a negative outcome (though we do not know about any 'near misses'), this does not render her 'risk-free' going forward and forever. The volumes of sedating medication at her disposal could, had she been so minded or simply made a self-dosage mistake, have easily proven fatal. On paper, each of Patient B's presenting symptoms could reasonably result in a prescription for one or other of the listed drugs. However, in reality, symptoms and treatments do not exist in a vacuum within a single patient. So, in toto, the combined drug regime was not acceptable and carried the significant risk of harm to the patient or abuse in other ways. Dr. Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. Dr Levy was asked: "Was it appropriate for Dr Javaheri to prescribe S8 drugs to this patient without an authority under s28 of the PTGA 1966?" He answered: "No. The legislation is clear on this point. Dr. Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. Dr Levy was asked if Patient B had exhibited any drug seeking behaviours. If she did, was the Respondent's response appropriate? Dr Levy responded as follows: "This patient did display drug-seeking behaviours and Dr Javaheri did not respond appropriately. Patient B had seen many doctors in the practice, with a cautionary note from Dr B "caution with sleepers' noted on 29/9/9. Analgesics, opioids, benzodiazepines and other drugs of addiction were prescribed in the years before Dr Javaheri took on care for Patient B. Additionally, the letter of 16/9/11 from Prof. S clearly delineates Patient B's addiction to medication. A clinical note from Dr. C on 9/5/15 reads: "….Pain management - main issue is with this been on copious analgesics over 18 years' really needs pain management…." On this background – and with Dr Javaheri's level of experience – the following behaviours should have raised immediate red flags, in terms of drug-seeking: - Repeated requests for analgesia immediately upon commencement of their therapeutic relationship, including repeated requests for analgesia (eg. on 21/12/13) despite no obvious physical cause for pain in notes - Other drugs of dependence requested (eg. Mogadon – 3/3/15) - Claim that Mogadon did not work and requesting replacement with Stilnox, also known for its 'street value' (2/4/15) - Multiple doctors (referenced a GP in Derby – 23/5/15) and convoluted analgesia management (ref. 25/6/15) - Varying reasons for requiring drugs of dependence across multiple consultations - Reportedly failing to control pain despite multiple medications (1/9/16) and repeated requests for same; recognised by Dr Javaheri - Running out of medication faster than she should (eg. 24/11/16, 18/2/19, 19/2/19 – sometimes noted by Dr Javaheri) - Lost medications (8/11/17, 13/2/19, 15/3/19) - Medications not picked up (23/11/18, 3/4/19) - Travelling so requesting extra (30/11/18) - Holiday period so requesting extra (18/12/18)- Outright falsehoods from the patient regarding seeing other GPs for medication (15/3/19). A letter from 9/5/17 by Dr C clearly references her known 'doctor shopping'. Despite all of the above, Dr Javaheri continued to prescribe drugs of addiction. Quite clearly, Dr Javaheri should have called out his concerns and Patient B's behaviours towards the start of their therapeutic relationship and, most certainly, by 2016. The issue of possible drug seeking should have been fully investigated by Dr Javaheri and appropriately managed with Patient B. To simply note the behaviours and continue prescribing as before is not acceptable. Dr Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. The HCCC then asked Dr Levy about the Respondent issuing private prescriptions for Patient B. Dr Levy was asked to review the records made for Patient B and advise whether the Respondents conduct was appropriate. Dr Levy responded: "No, it was not appropriate. The concern here regards the best interests of the patient and their health as well as the potentially criminal usage of the prescribed medications for illicit financial gain (and the potential health impacts on those purchasing and then taking the medications). It does not matter exactly by what mechanism the scripts were issued, simply that they were and could be exchanged for the drugs themselves. In some ways, purposely sidestepping the PBS system to issue scripts is worse, in that some of the normal controls over prescribing were evaded. Dr Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. In relation to making appropriate referrals for this patient and also the making of a medical record for Patient B Dr Levy opined each of those requirements fell below the standard however, not significantly so. 2. Dr Levy was asked to provide his opinion in relation to the conduct of the Respondent in the treatment of Patient C. The background to the treatment of this patient included that he was, at the time he was seen by the Respondent, the recipient of an authority which permitted the prescribing of methadone. In the background information Dr Levy was informed as follows: "Patient C is a 45-year-old drug dependent person with a current authority issued to a medical practitioner in 2017* to prescribe methadone on the NSW OTP. This authority is not issued to Dr Javaheri (see ERRCD Extract – Authorities held by Dr Javaheri at Tab 10). Patient C commenced consultations with Dr Javaheri on 11 January 2012. After this initial consult Patient C continued to see Dr Javaheri another four times during 2012 and 2013. Patient C commenced seeing Dr Javaheri on a regular basis from 26 November 2013 when he saw Dr Javaheri once or twice per month, on occasion three times per month, until 5 March 2020." 1. Dr Levy opined that the Respondent did not prescribe alprazolam appropriately for Patient C. He concluded Dr Javaheri's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Levy also opined that the prescribing of an S8 drug for Patient C without an authority under s28 of the PTGA 1966 was conduct which fell significantly below the standard. 2. In relation to Patient C exhibiting drug seeking behaviours Dr Levy listed all the drug seeking behaviours he identified from the records and opined Patient C did exhibit such behaviours and that the Respondent's conduct in not recognising or responding to same was significantly below the standard. Further in relation to the Respondent issuing private prescriptions (non-PBS) for S8 drugs, Dr Levy found the conduct of the Respondent was significantly below the standard. 3. In relation to appropriate referrals being made for Patient C, Dr Levy stated that there was some referred activity for this patient, however, it fell well short of the level of referring and following up on same, required. He opined the Respondent conduct fell significantly below the standard. 4. Dr levy opined that the Respondent's record making for this patient fell below the standard however not significantly. 5. Dr Levy addressed the questions asked of him in relation to Patient D. This patient presented with a similar medical history to Patient C. The facts presented to Dr Levy for this patient are as follows: "Patient D is a 47-year-old drug dependent person with a current authority issued to a medical practitioner in 2010 to prescribe methadone on the NSW OTP. This authority is not issued to Dr Javaheri (see ERRCD Extract – Authorities held by Dr Javaheri at Tab 10). Patient D commenced consultations with Dr Javaheri on 24 May 2013. After this initial consult Patient D continued to see Dr Javaheri another twelve times during 2013 to 2015. Patient D commenced seeing Dr Javaheri on a regular basis from 11 February 2016 when she saw Dr Javaheri multiple times per month, on occasion five times per month, until 2 March 2020. Dr Javaheri prescribed: a. alprazolam, b. oxazepam and c. tapentadol" 1. Dr Levy was asked the same series of questions as was asked in relation to patients A, B and C. In relation to the conduct which he opined was significantly below the standard, he stated each of the following conducts fell into that category. 1. The Respondent did not conduct an appropriate assessment of the patient prior to prescribing the drugs alprazolam, oxazepam and tapentadol. 2. It was not appropriate to prescribe each of the drugs concurrently. 3. It was not appropriate to prescribe S8 drugs without authority under s28 of the PTGA 1966. 4. This patient did exhibit drug seeking behaviour and the Respondent failed to respond appropriately. 5. It was not appropriate for the Respondent to issue private scripts for this patient. 6. The Respondent did not make appropriate and timely referrals for specialist assistance. 1. Dr Levy made the following further comment in relation to this patient. He said: "It is noted at one point that Patient D has an autistic son, 13yo. Whilst, of course, I have no insight into this relationship or the child himself, it should be noted that when prescribing drugs – especially a large volume of narcotic, addictive and potentially dangerous – the prescribing doctor should keep in mind other, vulnerable, members of a patient's household. It is vital to ascertain that these medications will be kept safely away from taking (either purposely or inadvertently) by others within the household." 1. Dr Levy was asked to provide his opinion in relation to the Respondents conduct when attending to Patient E. The background facts were stated as follows: "Patient E is a 50-year-old person. There are no records in relation to any authorities issued to prescribe to Patient E on the ERRCD database. Patient E commenced consultations with Dr Javaheri on 9 September 2014. After this initial consult Patient E continued to see Dr Javaheri twice per month, on occasion three times per month, until 24 September 2019." 1. Dr Levy was asked the same series of questions as was asked in relation to patients A, B C and D. In relation to the conduct which he opined was significantly below the standard, he stated each of the following conducts fell into that category. 1. The Respondent did not conduct an appropriate assessment of Patient E before prescribing diazepam and oxycodone. 2. The respondent did not prescribe the drugs for an appropriate therapeutic purpose. 3. It was not appropriate for the Respondent to prescribe S8 drugs to Patient E without an authority under s28 of the PTGA 1966. 4. Patient E exhibited drug seeking behaviours and the Respondent did not respond appropriately. 5. It was not appropriate for the Respondent to issue private scripts for S8 drugs for this Patient. 1. Dr Levy was asked to provide his opinion in relation to Patient F. The facts provided were as follows: "Patient F is a 41-year-old drug dependent person with previous authorities issued for methadone on the NSW OTP to medical practitioner since 2011, with a current authority for methadone issued during March 2018. This authority is not issued to Dr Javaheri (see ERRCD Extract – Authorities held by Dr Javaheri at Tab 10). Patient F commenced consultations with Dr Javaheri on 11 September 2012. Patient F saw Dr Javaheri again on 2 September 2012. After this consultation, Patient F did not see Dr Javaheri again until 13 February 2019 when he commenced seeing Dr Javaheri on a regular basis mostly twice per month, on occasion three times per month, until 13 March 2020." 1. Dr Levy was asked the same series of questions as was asked in relation to patients A, B C, D and E. In relation to the conduct which he opined was significantly below the standard, he stated each of the following conducts fell into that category. 1. "This patient was prescribed Diazepam, Panadeine Forte, Mirtazapine, Tramadol, Pariet and Keflex. It was not appropriate to prescribe these drugs concurrently. Tramadol is an opioid and, as with codeine above, will have an additive side-effect profile and combined with the potential side effects from diazepam use. These include drowsiness and respiratory depression. In the worst-case this may lead to respiratory arrest and death. Opioids and benzodiazepines are used in conjunction when treating patients but the risks therein are exceedingly well-known have, unfortunately, been delineated by many coroners subsequent to overdose. With those medications above that carry risk when prescribed in conjunction with benzodiazepines, there must be a compelling clinical reason for doing so. Such a reason did not exist with Patient F." 2. Patient F did exhibit drug taking behaviours and the Respondent did not respond appropriately. 3. The Respondent did not make appropriate or timely referrals for this patient. Dr levy could find no referrals for this patient. 1. In relation to the Respondents treatment of Patient F, Dr Levy provided the following further comments: "The following events in this patient history are a generally good example of Dr. Javaheri's behaviour across the range of consultations within this report. In the consultation of 30/7/19 (13 days after the previous request by Patient F for diazepam), the following is noted: "…asking for meds again explained that he's taking too many we reduce the number till he's back to controlling it…." Following this, Dr. Javaheri prescribes the same dosage as prior. Patient F does not return for almost a month, seemingly having a reduced need to fill his script, hopefully due to the advice given by Dr. Javaheri to reduce daily dosage. On 28/8/19 the consultation involves questioning Patient F's story and fact-checking it, but on Patient F's return on 23/9/19 the consultation reverts to a simple transaction whereby the patient asks for an addictive drug and receives it. The agreement made in August to only supply drugs monthly has disappeared by October where, on the 14th, three weeks after the previous dispensing of a prescription, Patient F requests more diazepam and receives it. Eight days after that, Patient F tells Dr. Javaheri that he is going away for work and requires an early script; receiving it (22/10/19) Three weeks after that is another tale of a spurious reason to increase the diazepam usage and a request for more – which is granted (13/11/19). 12 days after this, a request for more which is, again, granted despite the note stating: "….we have concerns about dependency !...." (25/11/19). The above interaction between doctor and patient is not a standard that one would expect from even a junior GP. There is the minimum of effort made by Dr. Javaheri to actually address the issue of the very obvious drug-seeking behaviour, formulate a plan and stick to it; i.e. to manage the issue. As with the other cases in this report, the relationship between Dr. Javaheri and his patient is one of demand by the patient for a drug of addiction/abuse and unquestioning supply by the doctor." 1. Dr Levy was asked to opine on the Respondent's conduct when treating Patient G. The following facts were provided: "Patient G is a 39-year-old drug dependent person. On 4 September 2019 Dr Javaheri applied for an authority to prescribe to Patient G, however, no authority was issued as the application from was incomplete (no drug details were specified). Javaheri (see ERRCD Extract – Authorities held by Dr Javaheri at Tab 10). Patient G commenced consultations with Dr Javaheri on 30 August 2016. After this initial consult Patient G continued to see Dr Javaheri two to three times per month until 6 March 2020." 1. Dr Levy was asked the same series of questions as was asked in relation to patients A, B C, D, E and F. In relation to the conduct which he opined was significantly below the standard, he stated each of the following conducts fell into that category. 1. The Respondent did not conduct an appropriate assessment of Patient G prior to prescribing Oxycodone. 2. The Respondent did not prescribe Oxycodone for an appropriate therapeutic purpose. Dr Levy said: "I cannot ascertain the actual therapeutic purpose at that time (30/8/16) for the prescription of Endone. Granted, there appears to be facial trauma history from 2013 but that was yet to be verified properly by Dr Javaheri and the fact that Endone was still required three years later should have raised enough questions in his mind to undertake a proper assessment – both physically and in terms of history (subjectively from the patient and objectively by means of medical records)." 3. The Respondent did not prescribe in the appropriate quantity. Dr Levy stated: "According to the Prescribing Table (version 2) provided in the bundle of evidence) the overall number of oxycodone (used interchangeably with the term 'Endone') dispensed over a period of 707 days was 7703 tablets (5 mg strength). This equates to almost 11 tablets per day, which is a very high quantity indeed, particularly in light of the fact that no clear and delineated ongoing clinical need for the drug was ascertained at any point during the relationship between Dr. Javaheri and Patient G." 4. It was not appropriate to prescribe to this patient the following: a. Loxalate b. Ondansetron c. Naprosyn d. Augmentin Duo Forte; and e. Endep in conjunction with Oxycodone. Dr Levy stated: "Loxalate (Escitalopram) is an anxiety/depression medication from the SSRI group of drugs. Although it is used alongside Endone, it does have the added risk of 'serotonin syndrome' given the pharmacological actions of both drugs. In its most extreme form, serotonin syndrome can cause high blood pressure and an increased heart rate that can lead to shock and death. Clearly Patient G did not have this outcome, but discussion of the risk should have occurred and been noted when first prescribing. Ondansetron reduces nausea and vomiting and carries a similar risk of 'serotonin syndrome' if combined with Endone (with the same potential outcomes) as above. Again, this appears not to have occurred but should have been warned of prior to first prescribing. Naprosyn is an anti-inflammatory medication, usually used for pain relief. There is no clinical issue in prescribing it alongside Endone. Augmentin Duo Forte is an antibiotic and may be safely used in conjunction with Endone. Endep (amitriptyline) is used for nerve pain and also carries the risk of 'serotonin syndrome' if combined with Endone (with the same potential outcomes) as above. Again, this appears not to have occurred but should have been warned of prior to first prescribing. Overall, the risk presented by co-prescribing Endone and any of the drugs above was limited. Although one can criticise the lack of reflection in the notes of adequate pre-prescribing counselling and discussion of risks with the patient, it is reasonable to assume a relative lack of risk of the outcomes occurring, given that they hadn't thus far. One can say that 'it wasn't entirely inappropriate to prescribe the above drugs in combination with Endone'." 1. It was not appropriate for the Respondent to prescribe S8 drugs to this patient without an authority under s.28 of the PTGA 1966. 2. Patient G exhibiting drug seeking behaviours and the Respondent did not respond appropriately. Dr Levy noted the following: "The 'Statement of Facts' in the evidence bundle lays out a very detailed summary of the consultations between Patient G and Dr. Javaheri. It is abundantly clear that a clinical basis for prescribing Endone – let alone in such a high overall quantity – was absent. A sample of the specific and clear drug-seeking behaviours shown by Patient G are: * 30/8/16 - requesting narcotic analgesia on the very first interaction with Dr. Javaheri and presenting a history of an older injury, still causing enough discomfort – after three years – to warrant a narcotic drug. (NB: This alone would and should have alerted any GP of reasonable experience that drug-seeking may very well be afoot and should have resulted in significant caution as regards prescribing at that point and ongoing.) Self-evidently, Dr. Javaheri's response was inappropriate and grossly inadequate. * Despite 20 tablets having been dispensed on 30/8/16, a request for more Endone six days later (5/9/16) on the strength of a story that his GP would not be back for ten days. Not only is this 'classic' drug-seeking behaviour but also an open admission that Patient G is now receiving Endone from two different doctors. He also mentions Pain Clinic; potentially another source of Endone. This is followed by a third request 10 days later…… (15/9/16), apparently after his own doctor had returned. The clear response to this by Dr. Javaheri should have been scepticism and non-prescribing of the Endone. Instead, the story of an absent GP is repeated on 29/9/16 with the same outcome of an Endone prescription. * Geographic relocation and a need for more Endone seven days later (6/10/16). Again, in early 2017, although the trip is delayed multiple times, for multiple reasons; each delay resulting in a request (and receipt) for more Endone * Upcoming holidays – needing an early script (23/12/16) * Non-attendance at the 17th January 2017 Pain Clinic appointment (as per notes of 16/1/17). Dr. Javaheri should have followed this up but did not. Beyond this point, Patient G presents many varied reasons behind his requests for Endone – as delineated in the Statement of Facts – multiple of which should have been regarded with the highest level of scepticism or dismissed outright as obvious fabrications. Dr. Javaheri raises the occasional objection but never changes his behaviour, the prescribing ongoing and tailored entirely to whatever Patient G tells him, an ever-increasing number of Endone tablets required per day. The level of credulousness displayed by Dr Javaheri and the lack of actual medical input to these consultations is remarkable. The service Dr Javaheri provides is simply to transcribe Patient G's drug request onto prescription paper." 1. It was not appropriate for the Respondent to issue private prescriptions for this patient which prescribed (Non-PBS) S8 drugs. 2. The Respondent did not make appropriate referrals for this patient. Dr Levy stated: "It was abundantly clear that Patient G was on a high dose and frequent prescription of oxycodone and Dr. Javaheri should have recognised - well before 7703 tablets have been dispensed – that this had run out of his control. Referrals to pain clinic should have been early and rigorous. There should have been conversations with the pain management and facial plastics specialists themselves to ascertain the underlying physical need analgesia and the quantity to be used." Dr Levy Oral Evidence 1. Dr Levy was required to give oral evidence, which he did provide on 15 November 2022. We noted the following, in particular, from his oral evidence. 2. Dr Levy confirmed the content of his report was true and correct. 3. Dr Levy was cross-examined by senior counsel for the Respondent. He agreed that addiction in medical treatment is treated as an illness. 4. In relation to all seven patients the subject of the Complaint, Dr Levy agreed they were victims of trauma. Dr Levy agreed that Patient E had a history of being raised by a violent alcoholic father. He had been incarcerated and released following conviction of stabbing another person. He suffered from anxiety, agoraphobia and chronic pain. 5. In relation to Patient G, Dr Levy agreed he had a history of chronic pain to his face. He suffered from PTSD. Dr Levy acknowledged that throughout the medical notes for Patient G, the Respondent records he was providing counselling. 6. In relation to each of the patients referred to in the Complaint, Dr Levy agreed that all seven presented as overwhelmed and having a degree of disfunction in their lives. 7. In relation to the continuing education which a GP is required to undertake to maintain a professional standard, Dr Levy agreed that it is not mandatory to undertake education in relation to the prescription of S8 and S4 drugs. 8. In relation to Patient E, the dates of the prescribing by the Respondent for the patient were read onto the record. Dr Levy said that the frequency of prescribing sounded reasonable however, he said it should have ceased during the time from 2014 and 2019. During that period the Respondent was prescribing. Dr Levy agreed it can be difficult for a GP to inform his patient there will be no more prescribing of a particular drug. 9. In relation to Patient G, Dr Levy agreed the prescribing of Endone was suggested by a specialist to whom the patient had been referred and that was appropriate. 10. Members of the Tribunal asked questions of Dr Levy. He was asked what might be available to a GP to help patients with chronic pain while the patient waits for access to a pain clinic. Dr Levy suggested personal counselling with a therapist or even with the GP. 11. In relation to the period during which the Respondent was prescribing S8 and S4 drugs, (as set out in the Complaint) Dr Levy said there were courses and training available to GPs in the prescribing of those drugs. 12. Dr Levy was asked about the conduct of a GP who only sees a small number of patients which require prescription of S8 and S4 drugs. He was asked what such a GP should do in relation to information about such prescribing. Dr Levy said he would expect the GP to understand the regulations around such prescribing. He should know what the laws are which regulate those drugs. That is self-education. There should also be a comprehensive assessment undertaken of the patient. There would need to be a plan to address the symptoms. 13. The Respondent asked Dr Levy about his statement that there are many publications available to GPs which provide information about prescribing S8 and S4 drugs. It was put that a recent search of the popular journal Australian Family Practice covering the last 5 years showed no information provided in relation to the prescription of S8 and S4 drugs. Dr Levy said he was unable to comment on that assertion. He said there was a publication called Australian Doctor and other such publications which he knew had provided information on prescribing generally. 14. The HCCC relied upon other documents which form part of exhibit A1. The documents include a transcript of the s150 proceeding; a redacted PRU Report including patient records; A Medicare Provider Report; a PBS Provider Report; Medicare and PBS data for the Respondent; and a prescribing Schedule. 15. We have considered those documents in this determination. In particular, in the report of the PRU officer, the particular drug dependency of each patient is set out. A number of the patients are noted as being patients for whom methadone has been prescribed pursuant to an issued authority which pre-dated the Respondent seeing the patient. The Respondent's Case 1. The Respondent provided a written statement which he said, in his oral evidence, was true and correct. 2. In the statement of the Respondent, contained in exhibit R1, we note the following evidence. 3. The Respondent obtained a "Doctor of Medicine" from Iran University in 1998. He worked in medicine in Iran for a few years. He migrated to the UK in 2000 and undertook further education. He commenced working as a medical practitioner in hospitals in the UK in 2002. He obtained employment as a GP Registrar in 2006 and as a GP in 2007. 4. In 2011 the Respondent moved to Australia. He has an interest in skin procedures and has been able to pursue that interest in Australia. 5. The Respondent obtained registration as a GP (without any further training or accreditation being required), upon arrival in Australia. We note he was not required to undertake any period of Limited Registration or specialist supervision for the first 12 months, which we have been told by Dr Levy, is now the requirement for overseas trained medical practitioners who seek to take up practice in Australia. 6. The Respondent commenced working at a practice in Penrith NSW in March 2011. He moved from that practice to his current practice in another part of the City of Penrith, in June 2020. His current practice consists of a large number of medical practitioners, including specialist practitioners other than GP's (between 17 and 19 in number). There are other facilities in the practice building including a pharmacy, a radiology practice, a pathology practice, a physiotherapy practice and a dietician practice. The practice is open from 7am to 10pm weekdays and 8am to 10pm weekends. The Respondent consults with between 30 to 35 patients each day. He is unable to prescribe S8 or S4 drugs because of a condition imposed on his registration, by the Medical Council, following the s.150 hearing in this matter, conducted in November 2020. 7. When he commenced practice he was provided with very little to no orientation in using the software called Monet. That was the software used in his first practice. He has no recollection of any alerts (pop-up menus) being created when he prescribed S8 of S4D medications. 8. The Respondent is married and has two young children. He volunteers as a religious leader and is a karate instructor. 9. When he commenced to practise in Australia, he believed that if he was not permitted to prescribe a particular drug the computer program he was using would prevent him from prescribing. That had happened when he attempted to prescribe a particular hypertension medication in a quantity of pills per script which was not available in that quantity. He had wanted to prescribe 30 tablets. However, he was permitted to prescribe only 28 tablets. 10. When he was first required to prescribe S8 and S4 drugs he made rules with his patients which included that they were required to stay on the prescribed amount of the drugs otherwise he would stop prescribing for them. He stated that the patients were already dependent upon the drugs they were seeking, as that drug had been prescribed for them by another GP in the practice. He said that although he did set rules for the patients when he prescribed the drugs, he was lenient with them. He gave them the "benefit of the doubt" when they sought further prescriptions earlier than they should have. He did, however, decline to provide further prescriptions when he could see the patient was taking no steps to cease using the medication. 11. The Respondent said he had been working in a large practice with 9 medical practitioners and a full-time nurse/nurses. Other doctors also serviced his patients, and no one spoke to him about his prescribing. 12. The Respondent said that he had only been made aware of the requirement to obtain authority with NSW Health to prescribe S8 drugs, after he overheard two colleagues talking about that. He made his first application in 2016. He said he had not been aware of matters relating to the prescription of S8 and S4D medications because he chose CPD subjects which related to the majority of his practice, or which were of interest to him. He acknowledged that he should have addressed self-education on these medications. 13. The Respondent then addressed the specific complaints numbered One to Nine in the HCCC Complaint document. 14. In relation to Patient A. He said Patient A had informed him that without the diazepam 5mg tablets he would lose the opportunity to enjoy life and could get worse with his mood functionality. The Respondent was told by Patient A that another doctor was prescribing antidepressant medication to him. The Respondent wrote to that other doctor to advise he was prescribing diazepam to Patient A. 15. The Respondent said that he realises, in retrospect, that it was inappropriate to have two different practitioners prescribing to the one patient. This should have been a "red flag" to the Respondent. 16. In relation to Patient B, the Respondent said she had been prescribed tramadol in 2010 by another doctor. Four doctors in the same surgery had prescribed that drug for Patient B, for a year, before she saw the Respondent. She was prescribed that drug without an authority issued to those practitioners. The Respondent said he managed to have Patient B stop her medication. 17. The Respondent addressed the Complaint so far as it related to Patient C. He had prescribed benzodiazepines for Patient C. He said another doctor had prescribed alprazolam for Patient C in 2015 and in 2021. Another doctor, who was the lead doctor in the practice, also prescribed that drug for Patient C. That reassured the Respondent that his prescribing was appropriate. 18. In relation to Patient D, the Respondent said he prescribed benzodiazepines for this patient. He had thought at the time that if she had attended on another doctor as well as the Respondent, then the "doctor-shoppers list would alert him to that. 19. In relation to Patient E, the Respondent said that he had ceased prescribing for Patient E as soon as he realised the patient had approached other doctors. He had stopped prescribing for this patient before he was interviewed by the authorities about prescribing S8 and S4D drugs. The Respondent said the same is true in relation to Patient F. 20. The Respondent said in relation to Patient G, he had applied for an authority to prescribe S8 and/or S4D drugs for Patient G on 4 September 2019 and again on 30 September 2019. He had understood that he could continue to prescribe while he was awaiting the authority as the medication had been recommended by Patient G's specialist practitioner. He also noted on the medical records, in 2019 when he was prescribing for Patient G, that other doctors in the practice were also prescribing the medication for the patient. 21. In relation to Complaint Nine (self-prescribing), the Respondent said that he had been prescribed testosterone by his specialist endocrinologist. He continued to take the medication which he self-prescribed. He was unaware there was a "blanket prohibition" against such prescribing. He also issued himself a script of antibiotics for in case it was needed when on travel over-seas. He referred himself for pathology testing and an ultrasound which was "in line with what the specialist had wanted". 22. The Respondent addressed Complaints 2A to 8A, all of which allege he has contravened clause 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016. He did not attempt to excuse the clear inadequacies in his medical record making. In relation to that regulation, Dr Levy set out extensively what was required in relation to the making of medical records by a practitioner. Dr Levy stated: "NB: For some of the records, the Health Practitioner Regulation (NSW) Regulation 2016, Schedule 4 (re: records kept by medical practitioners) (2016 regulation) may be more relevant than the 2010 version. The 2016 version is contained within my brief of evidence and used as a reference in answering this question. In any event, the pertinent wording is identical between the two versions (see below). The RACGP's Standards for General Practices, 5th edition 7.1's pertinent portions are: Content of patient health records Patient health records must be updated as soon as practicable during or after consultations and home and other visits. The record must identify the person in the clinical team making the entry. All patient health records, including scans of external reports, must be legible so that another practitioner could take over the care of the patient. Consultation notes must contain the following information: * Date of consultation * Who conducted the consultation (eg by initials in the notes, or by audit trail in an electronic record) * Method of communication (eg face to face, email, telephone or other electronic means) * Patient's reason for consultation * Relevant clinical findings including history, examinations and investigations * Allergies * Diagnosis (if appropriate) * Recommended management plan and, where appropriate, expected process of review * Any medicines prescribed for the patient (including the name, strength, directions for use, dose, frequency, number of repeats and date on which the patient started/ceased/changed the medication) * Patient consent for the presence of a third party brought in by the practice (eg a medical student) * Record of patient emails (if applicable). Other information may be included in the patient health record, such as: * any referrals to other healthcare providers or health services * medicines the patient takes that were not prescribed or advised by the practice * complementary and over-the-counter medicines * any relevant preventive care information collected, such as currency of immunisations, blood pressure, waist measurement, height and weight (body mass index) * immunisations * an advance care plan * the presence of a third party brought in by the patient (eg carer) * any special advice or other instructions given to the patient. The RACGP standards apply to the patient's medical record as-a-whole. Many of the elements above are, however, automatically generated by the medical software, some via clerical input and others by dint of nurse or allied health input. The doctor's contribution to the medical record falls within the portions of the following not automatically 'populated' by the medical software; ie: meaningful input regarding: * Patient's reason for consultation * Relevant clinical findings including history, examinations and investigations * Diagnosis (if appropriate) * Recommended management plan and, where appropriate, expected process of review Dr. Javaheri's input is generally basic throughout but contains enough detail for another doctor to continue care. In terms of the prescribing and possible dependency issues, the medical record certainly does not routinely incorporate findings or plans that one would consider to be highly relevant. The standard of clinical notes delineated in the Health Practitioner Regulation (NSW) 2010 (updated in 2016 but these portions remain identical) are: Schedule 4 Records kept by medical practitioners and medical corporations in relation to patients 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following— (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient— (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to a medical treatment or other medical service proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content. (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. It is quite clear from reading the entire patient record that Dr Javaheri's notes are deficient, specifically regarding the components of the Health Practitioner Regulation 2010 / 2016, particularly in relation to parts: 1(2)(a), 1(2)(b), 1(2)(c), 1(3) & 3(1) as they relate to the prescribing of drugs of dependence for this patient. The requirement delineated by Part 3(2) is generally (just) met, but not in regard to the patient's underlying drug issues. In-toto, Dr Javaheri's conduct fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. The Respondent addressed his current circumstances, knowledge and learnings arising from the action taken by the Medical Council and the HCCC in this proceeding. 2. The Respondent stated that this proceeding had been "a significant learning curve" for him. He set out what he now understands he should have undertaken in relation to the patients the subject of the Complaint. That includes undertaking a better assessment of patients, especially ones seeking drugs of addiction. He set out what he would include as part of that assessment. 3. The Respondent said he has completely stopped prescribing for himself. 4. In order to address the deficiency in his practice, which has been identified in this proceeding, the Respondent has taken the following action. 1. He completed a course of "Prescribing Opioids" in June 2020. 2. He has undertaken his own personal research through reading articles published in Medical Journals. He listed the articles he had studied. The articles all addressed aspects of practise which has been the subject of complaint by the HCCC. 3. He undertook and completed a course with Better Pain Management, Faculty of Pain Management, ANZCA in August 2022. 1. The Respondent has been under supervision since November 2020 as ordered by the Medical Council following the s 150 hearing. The Respondent said that has assisted him to clarify any potential gaps in his knowledge of the Australian health system. 2. The Respondent expressed his contrition for the offending, which he has readily admitted. The Respondent's Oral Evidence 1. The Respondent firstly confirmed that the content of his Statement, contained in exhibit R1 was true and correct. 2. The Respondent was cross-examined by counsel for the HCCC. 3. The Respondent confirmed that in the supervision sessions, he is required to undertake, he had discussed matters such as record keeping and Schedule 4 of the Health Regulations. He has considered the records he made in relation to the patients the subject of the complaints in this proceeding. He set out in his evidence, what he would do differently in relation to the record keeping he made for those patients. He understood the amount of information required to be contained in the medical records of a patient, to enable another medical practitioner to take over the care for that patient. 4. The Respondent was asked to look at the notes he made for Patient A, the subject of this proceeding. The Respondent said that the notes he made range from adequate to lacking detail. He had not set out a plan for the future care of the patient. At the time he made the note he said he did not understand it was required. He understands his medical notes for this patient did not comply with the Regulation. 5. The Respondent was asked to look at the notes he made for Patient B. He agreed the notes breached the Regulation which required the medical notes to contain sufficient information to allow another medical practitioner to take over the care of the patient confident that the past care explains the history of the patient and the plan for future care. 6. The Respondent conceded all of the notes which were the subject of the complaints were not compliant with the relevant Regulation. 7. The HCCC counsel asked the Respondent about providing private scripts for some of the patients the subject of the complaint. He was asked why he did that. He said that writing a private script permitted him to prescribe the amount of medication he was prescribing. He said the PBS will not allow for the prescribing of certain quantities. Also, some medications can only be obtained on a private script. On some occasions the patient wanted more medication than the PBS will allow. 8. The Respondent said that the prescribing of private script medication was necessary where the patients returned earlier than had been allowed for in the scripts which were provided under the PBS script. 9. The Respondent was asked about his experience in the prescription of equivalent S8 and S4 drugs in the UK whilst he worked there. The Respondent said the only drug which he prescribed, of that nature, was Panadeine Forte. He also had prescribed benzodiazepine drugs. He had not prescribed any opioid drugs whilst he worked in Iran. He agreed he had been comfortable in prescribing S8 and S4 drugs in Australia, however that comfort disappeared in 2020 with the advent of this proceeding. 10. The Respondent was asked how many patients he was prescribing S8 or S4 drugs for prior to 2020. He said it had been small in number. He made a list in 2016 as he sought authorities for each of those patients at that time. That was the first time he became aware that he needed authority for such subscriptions. 11. The counsel for the HCCC asked the Respondent to look at a letter from his lawyers to the HCCC dated 19 November 2021 (Tab 19 Vol 1 exhibit A1). In that letter it was stated that "Dr Javaheri came to Australia in 2011. He accepts with hindsight and embarrassment, that he did not take adequate steps to ensure that he was aware of the NSW Health's authority requirements for certain drugs of addiction." He was asked what steps he did take in April 2018. He said "none". (We note he had made application for authority to prescribe for all the patients he had in 2016, where authority was required.) 12. On the 5th of February 2021, the Respondent wrote to the senior investigations officer at the HCCC (Tab 15 Vol 1 exhibit A1) in which he said: "I was not aware that there is a different dose limit for patients who may have had addictions. I was not aware that certain patients of mine were drug dependant." The Respondent said he was unaware that some of his patients who were attending on a pain clinic were drug dependant. He said when he used the words "drug dependant" he was referring to the use of illegally obtained drugs. He also was confused by the term "drugs of addiction". Before he understood the authority system he had thought that was a description for illegally obtained drugs. When he found out about the need to obtain authority in 2016, he was not aware of the different authority process for S8 and S4 drugs. He made a list of all the patients who were being prescribed either S8 or S4 drugs. In 2018 and 2019 he became aware of the different requirements for S8 and S4 drugs and he investigated for himself through on-line research. In 2018 and 2019 he applied to PRU (Pharmaceutical Regulatory Unit) for authority to prescribe to relevant patients S8 and S4 drugs. 13. In the letter of 5 February 2021, which the Respondent had written to the HCCC (Tab 15 Vol 1 exhibit A1), he had stated: "I applied for an authority to prescribe Endone and I assumed I could continue prescribing until the authority was issued. I thought that while waiting for the authority I could issue private scripts….I did not appreciate I could not prescribe Endone until I received the authority." When asked about those words and his continued prescribing of Endone without the authority, the Respondent said: "These people were on Endone and could not suddenly be stopped." He acknowledged he was wrong and said he was acting compassionately towards his patients. He said he now realises he was practising dangerously with the prescription of those drugs. 14. The Respondent was asked how he would now ascertain if a patient was drug dependant. He said there are clues in the way they present. They may show an overwhelming desire for the medication. They have a good knowledge of the medication they are seeking. They can present with excuses as to why they are returning earlier than necessary for a script. They may have been to another doctor. The way they speak may be an indicator. The distance the patient has travelled to attend the Practice. Also, if the patient is not otherwise a patient who regularly attends the practice. 15. The Respondent was asked how he would now react to a patient if he was concerned, they are drug seeking. He said: "I would make a full assessment. I would assess their pain level. I would assess the patient's needs. How functional are they? I would make a plan. I would check with Doctor Shopper to see if they were known at another practice. If I considered it was required, I could prescribe only a small amount of the medication (number of doses). In the surgery, where I now work, we do not prescribe S8 or S4 for random patients." The Respondent explained how he would assess a patient's pain level. 16. The Respondent was asked to explain how he would now deal with a circumstance where a patient returned early for a replacement script for an S8 or S4 drug. He said: "We have strict rules about this. We can offer other tools such as a TENS machine. If the patient does not have a valid reason for an early return, we do not prescribe. We support with other measures." 17. Other evidence before the Tribunal in this hearing disclosed that patients who were refused prescription of S8 or S4 drugs were referred to Nepean Hospital for treatment. 18. In relation to the creating of a contract, with the patient, for the management of their medical condition, the Respondent said the contract is created in both writing and orally. He conceded in relation to the patients the subject of this proceeding, that although he had told the patients 4 or 5 times that he would not prescribe if they returned early for another script, he had failed to stop the prescribing. He said if that were to happen in the future he would refuse to prescribe and send them to the hospital. 19. The Respondent informed us that he is currently seeing 30 to 35 patients each day he works. He works 5 days a week. 20. In relation to his failure to make proper medical records he said that in the Practice in which he worked until 2020, he had not been told by any of the practitioners who had access to his record keeping, that it did not comply with the Regulation. 21. Although not suggesting it was an excuse for his conduct in prescribing, the Respondent said that at the time he was prescribing S8 and S4, drugs other practitioners in the same Practice were also prescribing and that gave him some comfort in how he was practising. 22. Members of the Tribunal asked the Respondent questions. In answering those questions, the Respondent described how he could assist a patient while the patient is waiting for placement with a pain clinic. The Respondent described a number of suggestions and referrals he could make to assist during that wait time. 23. The Respondent agreed that what had motivated him in prescribing for the patients, the subject of this complaint, was his desire to help his patients. The patients had multiple medical and social issues. He saw other peers who were also prescribing for their patients, in the same manner he was prescribing. 24. The Respondent said that in the practice where he now works, he is working in a team. The practitioners have regular meetings where they discuss real cases. He has informed 3 or 4 of his fellow practitioners about his attendance before the Tribunal. He feels well supported by his peers in his current practice. Evidence of Dr Stobo 1. Dr Stobo is the approved supervisor of the Respondent. He undertook that task following the orders of the Medical Council in November 2020. His supervision reports are set out at Tabs 3 and 4 of exhibit R1. He also provided a letter dated 6 October 2022 which is a testimonial he has signed in relation to the Respondent. 2. In his letter of 6 October 2022, Dr Stobo set out that he had read the Complaint the subject of this proceeding. He stated that he has supervised medical students, general practice registrars and that he is an examiner for RACGP. 3. Dr Stobo has been the supervisor for the Respondent since 2021. He has supervised now for 12 months. He has found the Respondent to be fully engaged with the supervision. He has had ample opportunity to observe the Respondent in his medical practice. He has found the Respondent's practise to be of a high standard. His medical record keeping is appropriate. His prescribing is appropriate. He is practising in a safe and competent manner. Dr Stobo described the Respondent as a valuable resource for the patients of western Sydney. Dr Stobo said that the Respondent is one of the practitioners he will sometimes consult in relation to a difficult clinical case. Dr Stobo opined that the need for ongoing supervision should be reviewed. Oral Evidence of Dr Stobo 1. Dr Stobo confirmed the contents of the Supervision Reports he provided, in relation to the Respondent, were accurate. 2. Dr Stobo is one of 17 or 18 medical practitioners who are engaged in the Practice where he and the Respondent work. He is not the manager of the practice. There is a lead doctor. Dr Stobo is not the lead doctor. 3. Dr Stobo emphasised that although the reports which he completed (Tabs 3 and 4 in exhibit R1) set out detail of formal meetings conducted with the Respondent, there were many more informal meetings. 4. Although the Reports state a particular named topic was addressed in the session, Dr Stobo said there were many more sub-topics within that which were discussed. 5. Dr Stobo was asked how many doctors in his practice prescribe S8 drugs. Dr Stobo said some do prescribe whilst others decline to do so. Doctors tend to avoid that prescribing as it involves a great deal of paperwork. 6. In relation to the meeting held with the Respondent on 28 October 2021, Dr Stobo was asked if he had required the Respondent to explain to him the restriction around the prescribing of the drugs identified. He said he had. Dr Stobo said the Respondent showed he was well aware of the restrictions. 7. In relation to the meeting on 16 December 2021 and the discussion about record keeping, Dr Stobo was asked if he had conducted a random audit of the Respondent's patient records. He said he had. 8. Dr Stobo was unaware of the specific number of patients the Respondent sees either daily or weekly. He said "He provides a full range of GP services. He has a large number of skills to attend to those who don't speak English well." 9. Dr Stobo was asked by the Tribunal members if he thought the Respondent required ongoing supervision. He said: "No". He said: I have observed him with procedures. He does that well. When I am away, he is one of the practitioners I recommend my patients see." Dr Stobo was asked if he had observed the notes the Respondent may have made in the files of patients of Dr Stobo. He said he had seen those notes and they are "good". He has seen evidence of the ability of the Respondent to make a comprehensive assessment of a patient. That was satisfactory. 10. Dr Stobo informed the Tribunal he has been an examiner for the College of General Practitioners for 20 years. 11. Dr Stobo said he had been unable to continue with the supervision of the Respondent which he undertook to do for a period of six months. Dr Homsey is now the supervisor. 12. Dr Stobo was asked if he had told the Medical Council that in his opinion the Respondent no longer required supervision. He said he had. He identified a document to that effect which was marked as exhibit R3. Written evidence of Darlene Cremona, Practice Manager 1. Ms Cremona provided a testimonial in relation to the Respondent. It is contained within exhibit R1. She did not provide oral evidence. We have assumed she was not required for cross-examination by the HCCC. 2. Ms Cremona said that she had been provided with a copy of the Complaint document which is the subject of this proceeding. She has known the Respondent since she was appointed to the Practice in August 2021. Ms Cremona has been a practice manager for over 13 years. When she was appointed as manager in her current position the Respondent informed her of his practise restrictions. 3. Ms Cremona said that she has observed the Respondent has complied with the restrictions attached to his registration. He has attended bi-monthly clinical meetings within the practice. She has observed the Respondent has worked throughout the Covid pandemic in both face to face and telehealth conferences. The respondent has a large patient base and is well respected among his peers in the practice. The Submission of the HCCC 1. The HCCC provided a written submission dated 14 November 2022. It also provided a minute of order which it submitted set out appropriate protective orders. 2. In the written submission of the HCCC we particularly noted the following. 3. The HCCC said: "This matter involves a complaint by the Pharmaceutical Regulation Unit ("PRU") to the Medical Council in relation to the Respondent's inappropriate prescribing of Schedule 4D and Schedule 8 drugs. On 23 November 2020, the Medical Council of NSW imposed conditions on the Respondent's Schedule 8 and certain Schedule 4D prescribing rights alongside other practice conditions." 4. The HCCC noted that there were 17 complaints involved in the proceeding brought against the Respondent. The submission provides an overview of each complaint. 5. The HCCC submission then helpfully addressed matters of law for our assistance. We have read that part of the submission; however, we do not repeat it here. 6. The HCCC addressed the findings which it submitted should be made. We here set out that part of the submission: 1."The Tribunal can be reasonably satisfied that the particulars of the Complaints have been established, having regard to the evidence set out above. 2. Complaints One to Nine allege 'unsatisfactory professional conduct' within the meaning of s139B of the National Law. 3.Complaint Ten alleges 'professional misconduct' by the Respondent pursuant to s139E of the National Law. 4.Section 139E makes it clear that the conduct alleged in the various particulars of Complaints One to Nine can be accumulated and considered in their totality to reach a finding of professional misconduct in relation to Complaint Ten (see Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 at [39]). 5.Clearly the difficulty for the Tribunal lies in distinguishing between a finding of 'unsatisfactory professional conduct' and 'professional misconduct'. 6.To this end, Kirby P in Pillai v Messiter [No 2] (1989) 16 NSWLR 197, lends guidance, suggesting the latter requires: 'A deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and the Respondent's medical records for the relevant patient do not comply with Schedule 4 of the Regulations, he is deemed to have committed an act of unsatisfactory professional conduct. 7. Schedule 4 of the Regulation provides in part; Clause 1 (2) A record must include the following-- (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. Clause 3 (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. 8. It is clear that the medical records of the Patients A-G lacked adequate detail about: a. Relevant clinical findings or opinions, including possible drug dependency; b. Treatment plan/s including for pain management and reduction of addictive medication in conjunction with a pain specialist; c. Information or advice given to the patient, including about the risks of addictive medications, in circumstances where the patient was being prescribed an addictive medication. 9 In failing to include such matters in the medical records the Respondent has breached Clauses 2(a), (b), (c) and 3(2) of the Regulation and as such is deemed by s139B(1)(b) to have engaged in unsatisfactory professional conduct. 10.In addition the Complainant relies on the evidence of Dr Levy; [1] 11.Patient A at pages 27-30 12.Patient B at pages 36-39; 13. Patient C at pages 45-48; 14. Patient D at pages 55-58; 15.Patient E at pages 64-67; 16. Patient F at pages 72-75; and Patient G at pages 82-85. 17. The Tribunal should be satisfied that Complaints 2A, 3A, 4A, 5A, 6A, 7A and 8A are made out." 1. In relation to that part of the HCCC case which included a complaint that the Respondent was also guilty of contravening s 139B(1)(l) the HCCC made the following submission: "Section 139B (1)(l) engaged in any other improper or unethical conduct relating to the practice or purported practice of medicine 1. The Respondent denies a breach of s139B(1)(l) in respect to Complaints Two to Nine. 2. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. 3. The opening words of this subsection include "any other". 4. The facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139 (1) (l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct. [2] 5. The decision in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [41]- [66] where Boland ADCJ, Deputy President discusses why, on the construction of s 139B, the facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139(1)(l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct". This analysis is consistent with an analogous interpretation of the words "is otherwise" in s 144(e) of the National Law in Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [108]- [116] where, amongst other things, the Court of Appeal at [115] cites with the apparent approval the decision of Boland ADCJ, Deputy President in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [60]." 1. The HCCC stated: "110. The Complainant does not assert that the Respondent has engaged in 'unethical conduct'. However, the conduct is "improper". 111. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical. 112. The above test was adopted in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [56]. It is also reasonable to consider the meaning of 'improper conduct' and 'unethical conduct' in connection with the objects and purpose of the legislation generally and, to some degree, the other types of conduct set out in section 139B (1) of the Law and the assessment of what constitutes improper or unethical conduct should also be made by reference to the views of reasonable members of the profession. 113. Whether conduct is improper or unethical is an objective test. 114. In this case the conduct of the Respondent as particularized and admitted was improper in the sense it was irregular and fell below the standards of conduct to be expected of medical practitioners in that it has a tendency to bring the profession into disrepute. 115. The Tribunal should find the complaint based upon s139B(1)(l) made out." 1. The HCCC then addressed the case against the Respondent which seeks a finding of professional misconduct. The HCCC submitted: "116. Complaint Ten alleges professional misconduct. 117. The Respondent admits this complaint and professional misconduct. 118. Given the absence of any comprehensive exploration as to the precise boundary between unsatisfactory professional conduct and professional misconduct, the concept of 'professional misconduct' should be given a purposive interpretation. 119. As established above, the Tribunal is required to consider both the objective of public protection, but also to recognise the corollary objectives of deterring practitioners, either specifically or generally, from repeating the same misconduct (see HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]). 120. Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the Respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the Respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638). 121. The Complainant submits that, both individually and cumulatively, the particulars of Complaints One to Nine demonstrates that the Respondent has engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of the Respondent's registration." 1. The HCCC also addressed the inappropriate Prescribing aspect of the complaint. It submitted that the conduct of the Respondent "is unsatisfactory professional conduct of the most serious kind and warrants a finding of professional misconduct and is of a sufficiently serious nature to justify suspension or cancellation of his registration." 2. The HCCC further submitted: "125. The Complainant submits that the conduct of the Respondent is most serious as to justify a finding of professional misconduct. 126. The Respondent's repeated prescribing to patients with propensities towards drug dependency indicates a concerning lack of insight or interest in the welfare of his patients. Further, this reflects a worrying lack of knowledge or due diligence by the Respondent. Further, his conduct is not merely concerning in its disengagement but also the extent to which it threatens the lives of these patients. CONCLUSION 127. The Tribunal should, on the evidence provided in conjunction with the admissions made by the Respondent, find the following: 128. Each particular of each complaint is made out on the evidence; (a) The Respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) and (l) of the National Law is made out. Further, the Respondent has contravened the Health Practitioner Regulation (NSW) Regulation 2016. (b) The Respondent is guilty of professional misconduct within the meaning of s139E of the National Law in that he has either: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 1. The HCCC then addressed the Protective Orders which might be imposed in this case. We will refer to that submission further in these reasons when we come to consider what Protective Orders we will make. 2. The HCCC made a short oral submission. It submitted that although the Respondent was not supervised in his practise when he arrived in Australia in 2011, he should have ascertained himself the regulation of the prescription of S8 and S4D drugs. This is particularly so for the Respondent as he had little or no prior experience in the UK, or Iran, where he had previously practised medicine, in prescribing equivalent S8 and S4D drugs. 3. The HCCC accepts that the Respondent is now aware of the requirements in relation to the prescription of S8 and S4D drugs. He is aware that it is necessary to create a contract with the patient about the use of the medication and the rules around seeking repeat prescriptions before the time provided by the last script has expired. He is aware of the need to enforce the contract. 4. Although there is no evidence that any patient was in fact harmed by the prescription practises of the Respondent during the times covered by the Complaints, it is the risk of harm which remains and is an important matter in the formulation of Protective Orders. The Respondents' Submission 1. The Respondent provided an oral submission. The Respondent's counsel provided a folder or decisions which she submitted would assist the Tribunal in reaching its' determination in this matter. We noted the following matters from the submission. 2. The Respondent addressed the issues in dispute, which relate to the record keeping he made for the patients the subject of the complaints. In relation to the clinical records the Respondent did make concessions during his cross-examination. It is submitted that some of the records made by the Respondent were not seen as insufficient. 3. The Respondent addressed the claim by the HCCC that the Respondent is guilty of unsatisfactory professional conduct as defined by s 139B(1)(l) of the National Law. In that claim the HCCC has pursued the case of "improper conduct" only, as conceded by the HCCC in its oral submission in reply. 4. The Respondent referred us to the decision in Attia v Health Care Complaints Commission Complaints Commission [2017] NSWSC 1066 (Attia) at [159] and [160]. The Respondent submitted the decision states the settled view that s 139B(1)(l) means conduct not otherwise dealt with in s 139B(1)(a). We have read that decision and find paragraphs [160] to [164] helpful in this determination. We set those paragraphs out here: "160 This conclusion is also supported by the terms of s 139B(1)(l), the opening words of which are, "any other improper or unethical conduct". This not only makes clear that the provision is dealing with conduct not otherwise dealt within s 139B(1)(a)-(k) but that the conduct caught by sub-s (1)(a)-(k) does concern, inter alia, "unethical conduct". 161 The plaintiff submitted that the provisions of sub-s (1)(l) illustrated why the legislature had not intended the impugned conduct to be caught by the provisions of sub-s (1)(a) as the legislature had provided a wider scope of power under sub-s(1)(l) in the nature of fit and proper person requirements capable of capturing the acts or omissions of the plaintiff as the director of a wholesale supplier as particularised in the complaints. 162 There are, with respect, three flaws in that submission. The first is that that provision, as I observed, operates only in circumstances where the earlier parts of the sub-section do not apply. Thus, if the impugned conduct falls within submissions (1)(a), sub-s (1)(l) has no work to do. 163 Secondly, the sub-section does not operate directly or exclusively in conjunction with "fit and proper person requirements" as contended by the plaintiff. As I observed, the opening words of sub-s (1)(l) made clear that ethical and related considerations may arise under sub-ss (1)(a)-(k) as applicable. 164 Thirdly, it is true the words "related" and "purported" do widen the scope of the meaning of "unsatisfactory professional conduct" for the purposes of s 139B(1) but those words operate upon the phrase "practice of the practitioner's profession". It follows that, if the conduct is something which is "in" that practice then, when read with the opening words of sub-s (1)(l), it cannot be "related to" the same or in the nature of something purported to be the practice." 1. The decision in Attia was adopted in Health Care Complaints Commission Complaints Commission v Yildirim [2021] NSWCATOD 146 at paragraphs [186] to [189]. We set out those paragraphs here: "186 Mr Yildirim contends that the same conduct cannot be relied upon to establish unsatisfactory professional conduct within the meaning of both s 139B(1)(a) and s 139B(1)(l). 187 In Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]-[160], Walton J observed that s 139B(1) (l) is not a stand-alone example of unsatisfactory professional conduct. The use of the word "other" - "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (emphasis added) - limits the operation of s 139B(1)(l) to conduct not falling within the definitions of unsatisfactory professional conduct in s 139B(1)(a)-(k). (See also Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31]; Health Care Complaints Commission v Hart [2021] NSWCATOD 36 at [47]). 188 In contrast, in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123, the Tribunal considered that as a matter of statutory construction, the same facts could establish unsatisfactory professional conduct within the meaning of ss 139(1)(a) and 139(1)(l). 189 Undoubtedly, as a matter of fact the same act or omission by a health practitioner is capable of being characterised as "improper and unethical" and also as demonstrating that the knowledge, skill or judgment possessed, or care exercised, by the practitioner fell below the relevant standard. However, that does not resolve the question of whether, having regard to the text and context of s 139(1), and in particular the opening words of s 139(1)(l), conduct found to fall within 139B(1)(a) can also be found to fall within one or more of paragraphs of s 139B(1)(a)-(k). We are not persuaded that the interpretation adopted by Walton J in Attia v Health Care Complaints Commission is plainly wrong and adopt that interpretation. Therefore, the question of whether Mr Yildirim's conduct found by us to fall within s 139B(1)(a) also amounts to "other improper or unethical conduct", does not arise." 1. The Respondent also referred us to the decision in Health Care Complaints Commission Complaints Commission V Khalighimonfared [2022] NSWCATOD 78 (Khalighimonfared). The Respondent submitted that this case was a "prescribing case" where unethical conduct was not made out. We were referred to paragraphs [73] to [86]. This case was very similar factually to that under consideration by us. We set out here paragraphs [74] to [76]: "74 In HCCC v Boulton [2021] NSWCATOD 160 the Tribunal noted that the National Law contains no definition of the terms "unethical" and "improper". The Tribunal referred to the Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners et cetera" or "abnormal or irregular" and "of 'unethical'" as "1. Contrary to moral precepts; immoral" and "2. In contravention of some code of professional conduct." The Tribunal in HCCC v Boulton referred also to the decision of the High Court of Australia in R. v Byrnes & Hopwood [1995] HCA 1. 75 In HCCC v Nguyen [2018] NSWCATOD 168 the Tribunal considered the application of the term "improper conduct" in section 139B(1)(l) and stated "the High Court has noted that 'improper' is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514 where Brennan, Deane, Toohey and Gaudron JJ said: "impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of ethical conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position or circumstances of the case." 76 In HCCC v Boulton the Tribunal found that the practitioner had engaged in unethical and improper conduct in that he failed to advise AHPRA, in his registration and renewal applications, of criminal offence and convictions. The Tribunal observed that "it is essential for the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities." 1. In Khalighimonfared the Tribunal referred to the repeated reference to the Respondent's "knowledge gap" which had been explained by his receiving no training in Iran in relation to opioid dependency. The Respondent acknowledged that it was his responsibility to address his lack of knowledge in that area of practice. It was noted the "knowledge gap" had persisted for several years. At paragraph [85] the Tribunal concluded: "There is no doubt that the conduct of the practitioner, in relation to his treatment of the six patients, was significantly lacking and, by his own admission, sufficient to constitute unsatisfactory professional conduct and professional misconduct. We do not consider, however, that his conduct could properly be found to be 'improper or unethical relating to the practice or purposed practice of medicine'. In our view, his deficiencies in knowledge and practice do not include any element of 'unethical or improper conduct' for the purposes of section 139B. He lacked relevant knowledge and experience and acted in a manner which did not meet the best interests of his patients but, in our assessment, there was no 'unethical or improper element' to his conduct." 1. The Respondent submitted that the determination of whether conduct is unethical and improper is an evaluative decision. "There is no element in this case to find unethical or improper conduct." 2. The Respondent then addressed the Protective Orders which he submitted would be appropriate in the circumstances of this case. 3. The Respondent referred us to s 3(3)(c) of the National Law and emphasised the words "restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality." 4. The Respondent challenged the submission of the HCCC at paragraph 151 and 152 of its written submission. There the HCCC had relied on the observations of Mahoney JA in Dawson v Law Society of New South Wales [1989] NSWCA 58. In particular the words "the court will require 'solid and substantial grounds' for the conclusion that his standards have changed or that he will act differently.' (emphasis added)" The HCCC submitted: "The Tribunal does not have before it solid and substantial grounds for the conclusion that his standards have changed or that he will act differently in the future." 5. The Respondent submitted the evidence before the Tribunal indicates clearly that the Respondent will act differently in the future in relation to his prescribing of S8 and S4D drugs. 6. The Respondent pointed to the evidence of Dr Stobo, who is a senior practitioner and longstanding examiner for the College of GP's. His evidence should be afforded significant weight. He described the Respondent as a competent practitioner. He is a valued member of the practice he now belongs to and provides a valuable service which is needed in Western Sydney, namely the ability to consult with patients who speak Persian as their day-to-day language and struggle with English in a medical context. 7. Without seeking to be excused for his conduct, which he has readily admitted, the Respondent points to perhaps a failure in the regulatory functions of Australia at the time he migrated from the UK to Australia in 2011. He was not required to undergo any further training or supervision at that time. That is no longer the case for overseas trained medical practitioners, who hold the same training and accreditations which the Respondent held, in 2011. Such practitioners are now required to be supervised for a period of 12 months if they hold recognised specialist qualifications, from other countries, before they are granted unlimited specialist registration. 8. Further, the Respondent's counsel pointed to the incorrect examples of prescribing of S8 and S4D drugs, by a senior practitioner, in the first practice in which the Respondent worked when he came to Australia in 2011. It was in that practice that the prescribing, the subject of the complaints made and prosecuted by the HCCC, in this hearing, were made. 9. The Respondent now practises in a large medical practice in which he feels comfortable and supported. The practice is, on the evidence of both the Respondent and Dr Stobo, efficiently conducted and requires regular and frequent meetings, of the practitioners who work there, to discuss their medical practise. 10. In relation to the protective orders which the Tribunal could make in this matter, the Respondent submitted that suspension is sought by the HCCC for the purpose of meeting the requirement of a general deterrent. The Respondent submitted there is no authority which states that only a suspension order will meet the requirement for a general deterrent. The Respondent referred us to the decisions in HCCC v Perera [2018] NSWCATOD 112; HCCC v Dowla (2) [2019] NSWCATOD 156; HCCC v Dunstan [2018] NSWCATOD 102; HCCC v Lord [2019] NSWCATOD 182; NSW Bar Association v Meakes [2006] NSWCA 340. 11. In HCCC v Ochoa [2022] NSWCATOD 32 the Tribunal ordered the practitioner be reprimanded notwithstanding a finding of unsatisfactory professional conduct and professional misconduct. The case considered a Complaint in relation to the practitioners conduct with six patients. At paragraph [9] the Tribunal listed the particulars of the conduct of that practitioner. The Particulars allege unsatisfactory professional conduct in relation to the prescribing of opioid drugs. It also alleged failure to properly manage patients who were being prescribed opioid drugs. Initially the Medical Council in a s 150 hearing cancelled (or possibly suspended) the practitioner's registration. At a further hearing the Medical Council lifted the suspension order and imposed conditions. That had occurred in December 2018 (some 3 years before the Tribunal hearing). Category B supervision was required. 12. In relation to the facts established in this matter the Respondent submits the prescribing was not in the most serious of categories. There was a level of engagement with presenting symptoms of his patients. The Respondent's counsel submitted a close scrutiny of the medical records reveals the Respondent did give counselling to the patients on 37 occasions. Such action supports a conclusion the Respondent was acting through a motivation to help the subject patients. The nature of the presentation of his patients suffering from trauma, makes the circumstances such that it invigorated compassion in the Respondent. 13. The Respondent also addressed the dilemma faced by the Respondent when faced with the prospect of refusing to prescribe the opioid being sought by the patient in circumstances where failure to prescribe can cause significant harm or effect on a patient. 14. The Respondent's counsel pointed to the evidence that each of the patients the subject of the complaint, came to the Respondent with a history of having been prescribed S8 or S4D drugs by other practitioners. 15. In relation to the supervision which the Tribunal might consider imposing as part of conditions, the Respondent submitted that Category C supervision would be appropriate however, the Respondent submitted the supervision should only apply to the prescription of S8 and S4D drugs. In relation to the S4D drugs the Respondent submitted the supervision should only be required for the prescription of benzodiazepine drugs. It was submitted that the Respondent should be permitted to prescribe those drugs under supervision. It was submitted the Respondent could be required to undertake the "Opioid Prescribing Course" as suggested by Dr Stobo. 16. In the event that the complaint in relation to the medical record making of the Respondent is found established then it was conceded a clinical record audit would be appropriate. The Respondent submitted the cost to the practitioner of the audit, is a matter to be considered in ordering an audit. 17. If there was seen to be no requirement for further supervision, the Respondent submitted the Tribunal could require the Respondent to obtain a mentor for a defined period. The HCCC submission in Reply 1. In relation to the submission by the Respondent addressing the meaning to be placed on the wording of s 139B(1)(l) the HCCC referred us to paragraph 104 and following of its' written submission. At paragraph 105 the HCCC set out the following: "The decision in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [41]- [66] where Boland ADCJ, Deputy President discusses why, on the construction of s 139B, the facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139B(1)(l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct". This analysis is consistent with an analogous interpretation of the words "is otherwise" in s 144(e) of the National Law in Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [108]- [116] where, amongst other things, the Court of Appeal at [115] cites with the apparent approval the decision of Boland ADCJ, Deputy President in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [60]." 1. We note the content of paragraph [60] of the Tribunal decision in Haasbroek as above cited is as follows: "We agree with the interpretation of s 144(e), adopted in the cases cited in Mr Britt's submissions. On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration." 1. The HCCC further submitted: "Complaints Two to Nine refer to unsatisfactory professional conduct in relation to 'improper' and/or 'unethical conduct', as referenced in s 139B(1)(l) of the National Law. This requires an examination of the meaning of these words, which are not defined in the National Law. Assistance in determining what is meant by 'improper' can be gained from what the High Court of Australia said of the word 'impropriety' in R v Byrne (1995) 193 CLR 501 at 514-515. [3] If the Respondent's conduct, as found by the Tribunal, was not in conformity with standards of professional conduct and practice it would be appropriately deemed improper. [4] The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 the Tribunal held at [30]-[31]: The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession"." 1. The HCCC submitted in its written and oral submission that, for the purpose of s 139B(1)(l) or otherwise, it is not asserted the conduct of the Respondent was "unethical". 2. The HCCC referred us to paragraphs 150 and 151 of its' written submission and said that those submissions relate to the Tribunal being satisfied the Respondent will act differently in the future in respect to his ability to say "no" to drug seeking patients. He did not say "no" to patients, in the past "when lines were crossed." 3. The HCCC submitted that "context" is important when the consideration of the conduct of the practitioner is being considered in the process of determining appropriate Protective Orders. However, the HCCC submits that deterrents are important in the formulation of Protective Orders. An example of how the deterrent aspect of the orders may be seen as warranted, can be seen in the conduct of other practitioners in the Respondent's first practice experience in Australia, in relation to prescribing S8 and S4D drugs. 4. The HCCC submitted that if the Tribunal accepts the Respondent was acting out of care and compassion for his patients with the prescribing of S8 and S4D drugs, the subject of this Complaint, then that compassion needs to be seen in the context of what was in fact happening, namely, the feeding of an addiction. Has the HCCC established Complaint One? 1. The complaint alleges the Respondent is guilty of unsatisfactory professional conduct (s 139B(1)(a)). It alleges that is resulting from: "During the period from approximately 1 February 2018 to approximately late 2019 the practitioner failed to properly inform himself of the legal requirements under the Poisons & Therapeutic Goods Act 1966 ("the PTGA") and the Poisons & Therapeutic Goods Regulation 2008 ("the PTGR") concerning the prescribing of Schedule 8 drugs of addiction and in particular, the authority provisions in Division 2 of the PTGA, prior to prescribing drugs of addiction to his patients at the Medical Centre." 1. The Respondent admits this Complaint is established. We are also satisfied by the evidence of Dr Levy that the Complaint has been established. Dr Levy opined the conduct of the Respondent fell below and/or substantially below the expected standard. We are satisfied that was the case and that the Respondent is guilty of unsatisfactory professional conduct as defined by s 139B(1)(a) of the National Law. Has the HCCC established Complaints numbered 2 to 8? 1. The next matter to be determined is whether the Respondent is guilty of unsatisfactory professional conduct in each of the Complaints numbered 2 to 8. 2. The Respondent admits he is guilty of unsatisfactory professional conduct established by each of those complaints. His admission is restricted to an offence as defined by s 139B(1)(a). The evidence of Dr Levy supports a finding as sought by the HCCC pursuant to that section. We are satisfied that was the case and that the Respondent is guilty of unsatisfactory professional conduct as defined by s 139B(1)(a) of the National Law. Has the HCCC established Complaints with the letters "A" attached. That is alleged contravening of the Health Practitioner Regulation (New South Wales) Regulation 2016 in relation to record keeping? 1. As seen in the written evidence of Dr Levy, he opined: "Overall, Dr Javaheri's medical records are just about reasonable. They are, by no means, filled with detail and I have certainly seen better clinical notes, but they convey the essential 'story' in the majority of consultations where Dr Javaheri is seeking to do so. Although a little 'bare-bones', one could understand the nub of the patients' issues and continue their care based upon the notes." 2. The HCCC seeks a determination that the Respondent is guilty of unsatisfactory professional conduct (s 139B(1)(b)) in relation to complaints 2A to 8A inclusive. This conduct relates to the making of medical records in respect of each of the patients referred to in complaints 2 to 8 inclusive. 3. Section 139B(1)(b) states: 139B (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. The Complaint alleges the Respondent has contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016. 2. Dr Levy was asked to opine in relation to each of the complaints numbered 2A to 8A as to whether the clinical records met the requirements of the said Regulation. Dr Levy set out the relevant portion of the Regulation in his written report and then determined in each of the complaints made by the HCCC which address the complaints numbered 2A to 8A, the Respondent had not complied with the Regulation. 3. Although a question of the extent to which the conduct of the Respondent in relation to the making of medical records, is below the standard or substantially below the standard, is not required by the provisions of s 139B(1)(b), Dr Levy did express his opinion, in those terms, and opined that the conduct of the Respondent was below the level expected of him. He did not express an opinion which stated the level was significantly below the expected level. 4. The Respondent in his submission on the s 139B(1)(b) complaints, sought to rely on the fact that his record making was not significantly below the level expected, however, that perhaps is a matter which might be considered in relation to determining the nature of Protective Orders and even whether a complaint under s 139E is made out. In this case the HCCC did rely upon the Particulars set out for each of the complaints made and numbered 2A to 8A by it, when Complaint 10 (the s 139E complaint) was particularised in the Complaint document exhibit A3. 5. The Respondent agreed in cross-examination that his records did not comply with the Regulation. 6. We are satisfied the HCCC has made its case that the Respondent is guilty of unsatisfactory professional conduct ,by the conduct specified in the complaints numbered 2A to 8A inclusive. Has the HCCC established its case against the Respondent under s 139B(1)(l) "improper conduct"? 1. Each of the parties has submitted extensively in relation to this part of the Complaint made by the HCCC. The matter to be determined is whether the HCCC has established the conduct of the Respondent is "any other improper conduct". The HCCC has made clear it is not pursuing the complaint that the Respondent's conduct was unethical. 2. The Respondent's case is that there is not "any other" improper conduct to be considered once the complaint under s 139B(1)(a) has been exhausted. That complaint, in this matter, has already addressed "improper conduct" in the sense that the conduct of the Respondent has been found to be "significantly below the standard" as set out in s 139B(1)(a). 3. The Respondent has relied upon a decision of the Tribunal in the matter of Ochoa where, in somewhat similar fact circumstances to that set out in this case, the Tribunal was not satisfied the HCCC had established "any other improper conduct". The HCCC has relied upon a decision of the Tribunal in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123, to establish that findings made which establish a complaint of unsatisfactory professional conduct, pursuant to s 139B(1)(a), "additionally, may also constitute 'any other improper or unethical conduct' within the meaning of s 139B(1)(l) and thereby satisfy a separate complaint of unsatisfactory professional conduct." 4. We have considered the arguments of each of the parties and assessed same against the established facts. If we follow the dictionary definition of "improper" (as in Health Care Complaints Commission Complaints Commission v Sare [2018] NSWCATOD 190) then we would find the conduct of the Respondent was "abnormal or irregular". If we follow the words adopted in Office of Local Government v Toma [2015] NSWCATOD 21 then we would find the conduct fell "below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the" medical profession. Such findings would then establish the HCCC case against the Respondent pursuant to s 139B(1)(l). 5. We do accept the submission of the HCCC on this issue, and do find the Respondent is also guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law. However, in so finding we state the outcome in this determination is not dependant on that finding. The conclusions we have reached in relation to the protective orders to be made in this case, would stand with or without, a finding of guilt pursuant to s 139B(1)(l) of the National Law. 6. Having been satisfied the HCCC has established the Respondent is guilty of unsatisfactory professional conduct pursuant to one limb of s 139B(1)(l) of the National Law, we cannot see how, in the particular circumstances of this case, such a finding has significant meaning. It is a matter which may address the seriousness of the conduct when put alongside all of the other findings in this case, against the Respondent, pursuant to s 139B(1)(a), and thereby inform the decision in relation to s 139E. In this case however, the Respondent has readily admitted he is guilty of professional misconduct pursuant to s 139E and to the extent it is necessary to do so, we also find he is guilty of professional misconduct. However, the admission of the Respondent to Complaint 10 (the s 139E complaint), was made in circumstances where he was denying he was guilty of unsatisfactory professional conduct as defined by s 139B(1)(l). We would also have been prepared to find the Respondent guilty of professional misconduct whether we were satisfied he was or was not guilty of unsatisfactory professional conduct as defined by s 139B(1)(l) of the National Law. Has the HCCC established Complaint Nine in relation to the Respondent self-prescribing and self-referring? 1. The evidence of Dr Levy, contained in his report, is that the Respondent's conduct in relation to his self-prescribing and self-referring was below the level expected however, not significantly so (see Tab 9 pages 21 and 22, Item 5 and 6). 2. The complaint against the Respondent at Complaint 9 is framed as the Respondent being guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l). Unsatisfactory professional conduct under s 139B(1)(a) requires the HCCC to establish the Respondent's conduct was "significantly below the standard." The evidence of Dr Levy did not establish that case. 3. The HCCC however, has a second limb to its claim of unsatisfactory professional conduct in Complaint 9 and that arises from s 139B(1)(l) and the meaning of the words: "any other improper conduct". 4. As we have discussed above, those words have been determined by the Tribunal to include "abnormal or irregular". The words have also been determined to mean, by analogy, "regarded by reasonable persons as falling below the standards of conduct to be expected……., in that it has a tendency to bring into disrepute the" medical profession. 5. The Respondent has admitted his conduct as described by Complaint 9, is unsatisfactory professional conduct. That admission is to unsatisfactory professional conduct as defined by s 139B(1)(a) of the National Law. However, as the conduct was not "significantly" below the standard (see the evidence of Dr Levy), that complaint is not made out. We do, however, reach the conclusion that s 139B(1)(l) is satisfied on the basis that we are prepared to find the conduct was "improper conduct". We do so adopting the submissions of the HCCC, which addressed the meaning of the words "improper conduct", as contained in s139B(1)(l), of the National Law. Has the HCCC established Complaint 10 (professional misconduct) 1. Section 139E requires the following to be established, in order to make a finding of professional misconduct. 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (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 HCCC pursues a finding of professional misconduct under both subsections (a) and (b) of s.139E. In particular it addressed subsection (a) in its written submission. The Respondent has admitted professional misconduct but only in relation to subsection (b). That is the accumulation of conceded unsatisfactory professional conduct findings, establishes the case for professional misconduct. 2. We find on the evidence that the Respondent is guilty of professional misconduct as defined by s 139E(b). 3. In relation to the establishment of its case under s 139E(a) the HCCC has set out in its written submission, a summary of the inappropriate prescribing of the Respondent. Its submission when seen in one collection is very striking. The submission is as follows: "Inappropriate Prescribing 122. The Complaints One to Eight concern, in part, the inappropriate administration of drugs to patients. 123. These Complainant refers to those matters commencing at [144](below). 124. The Complainant submits that the failures of the Respondent in: (a) Prescribing Schedule 8 and Schedule 4 drugs to patients without checking whether they were drug dependent; (b) Prescribing Schedule 8 and Schedule 4 drugs to patients who were drug dependent; (c) Prescribing Schedule 8 and Schedule 4 drugs to patients in inappropriate dosages; (d) Failing to respond appropriately to drug seeking behaviours; (e) Prescribing Schedule 8 drugs and the Schedule 4 drugs without conducting an appropriate assessment and conducting a formal clinical examination; (f) Prescribing Schedule 8 drugs to patients not in accordance with an accepted therapeutic purpose; (g) Prescribing Schedule 4 drugs to patients not in accordance with an accepted therapeutic purpose; (h) Inappropriately prescribing alprazolam, tapentadol and diazepam concurrently; (i) Inappropriately prescribing alprazolam and tapentadol concurrently, and concurrently with oxazepam; (j) Inappropriately prescribed alprazolam, tapentadol and oxazepam, concurrently with other drugs such as codeine ("Panadeine Forte"), mirtazapine, quetiapine ("Seroquel"), lorazepam ("Ativan"); (k) Inappropriately prescribed diazepam and oxycodone concurrently; (l) Inappropriately prescribed diazepam and oxycodone concurrently with other drugs such as oxazepam and codeine ("Panadeine Forte"); (m) Inappropriately prescribed diazepam concurrently with codeine ("Panadeine Forte"), mirtazapine, and tramadol; (n) Failing to make appropriate and timely referrals for specialist review and advice; (o) Prescribing Schedule 8 drugs to drug dependant persons without obtaining the proper authority from NSW Ministry of Health, contrary to section 28(3) of the PTGA; (p) prescribe Schedule 8 drugs by private prescription to patients despite patients exhibiting the drug-seeking behaviours; (q) Failing to provide appropriate follow-up on patient's attendance to specialist appointments, or take action on feedback obtained from specialist referrals, when referrals were made; (r) Failing to respond when patients exhibited drug seeking behaviour; (s) Continuing to prescribe Schedule 8 drugs when the practitioner had formed the opinion or ought reasonably to have formed the opinion that the patient was a drug dependent person without the authority to prescribe under s 29 of the Poisons and Therapeutic Goods Act 1966;and (t) Failing to properly inform himself of the legal requirements under the Poisons & Therapeutic Goods Act 1966 ("the PTGA") and the Poisons & Therapeutic Goods Regulation 2008 ("the PTGR") concerning the prescribing of Schedule 8 drugs of addiction and in particular, the authority provisions in Division 2 of the PTGA, prior to prescribing drugs of addiction to his patients at the Medical Centre, is unsatisfactory professional conduct of the most serious kind and warrants a finding of professional misconduct and is of a sufficiently serious nature to justify suspension or cancellation of his registration. 125. The Complainant submits that the conduct of the Respondent is most serious as to justify a finding of professional misconduct. 126. The Respondent's repeated prescribing to patients with propensities towards drug dependency indicates a concerning lack of insight or interest in the welfare of his patients. Further, this reflects a worrying lack of knowledge or due diligence by the Respondent. Further, his conduct is not merely concerning in its disengagement but also the extent to which it threatens the lives of these patients. 1. We have reviewed the evidence which has been accepted by us in this matter and the concessions made by the Respondent. We agree with the HCCC that the conduct of the Respondent is sufficiently serious in nature to justify suspension or cancellation of his registration as a medical practitioner. Although we accept there is no evidence of harm befalling the patients referred to in Complaints 2 to 8 inclusive, as a direct result of the unsatisfactory professional conduct of the Respondent, which has been found to be unsatisfactory professional conduct, there are other potential harms which could have quite easily manifested. His failure to take steps to acquaint himself with the Australian Regulations relating to the prescription of S8 and S4D drugs, raises a serious concern about his ability to recognise any other part of his practise of medicine in Australia, which may be different to that experienced by him as a practitioner in the UK and Iran. We note however, that the authorities who were controlling the practise of foreign trained doctors entering Australia, at the time the Respondent first commenced his practice, did not require him to undergo any additional study or any supervision of his practice in the first 12 months or so of his being in Australia. The Protective orders to be made 1. The HCCC provided a minute of the order it sought. The Minute was marked as exhibit A5. The Minute sought the following Protective Orders: Commission's Proposed Protective orders Suspension 1. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of 6 months from the date of this decision. Practice conditions 1. Under section 149A(1) of the Health Practitioner Regulation National Law , the Tribunal directs that the following Conditions be imposed on the respondent's registration: Schedule 8 drugs (a) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). (b) To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by [insert date]. Schedule 4D - benzodiazepines (a) Not to possess, supply, administer or prescribe any benzodiazepine derivatives including those separately specified in the Schedules of the Poisons Standard by [insert date]. (b) To provide written evidence to the Medical Council of NSW that he/she has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him/her from possessing, supplying, administering or prescribing any benzodiazepine derivatives including those separately specified in the Schedules of the Poisons Standard by [insert date]. Supervision To practise under category C 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. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Prescribing, including the prescribing of any Schedule 4 Appendix D medications ii. Clinical reasoning iii. Medical record keeping - including a review of [#] patient records from the preceding month, selected at random by the supervisor iv. Medico-legal issues and requirements (b)To authorise the Medical Council of NSW to provide approved supervisors with a copy of the decision which imposed this condition Education To complete within 12 months of [insert date] the "Issues in General Practice Prescribing" course organised by Monash University. (a) Within 1 month of [insert date] he 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 "Issues in General Practice Prescribing" course is unavailable, he 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 [insert date]. Audit To submit to an audit of his medical practice by a person or persons nominated by the Medical Council of NSW. (a) The audit is to be held within 6 months of having completed the prescribing course and subsequently as required by the Council. The auditor(s) should: (i) assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions; (ii) Review his drug register; and (iii) Inspect his drug storage facilities. (b)The auditor(s) is to assess his/her practise with particular (i) attention to: (ii) prescribing, administering and recording of drugs of addiction and drugs of dependence, (iii) compliance with Poisons and Therapeutic Goods Act and Regulation (c)To authorise the auditor(s) to provide the Council with a report on their findings. (d)To meet all costs associated with the audit(s) and any subsequent reports. Review 1. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. 2. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The Respondent provided a Minute of the Protective Orders he submitted were appropriate (Exhibit R). The Minute provided: PROPOSED ORDERS BY RESPONDENT II. In accordance with section 149A(1)(a) of the Health Practitioner Regulation National Law (the National Law) the practitioner is reprimanded. III. In accordance with section 149A(1)(b) of the National Law, the practitioner's registration shall be subject to the following conditions: Practice Conditions 1. To practise under category C 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. a) Supervision is to occur on a monthly basis. b) At each supervision meeting the practitioner is to review and discuss his prescribing of any benzodiazepines and/or Schedule 8 medications with his approved supervisor and in particular: (i) dose, frequency, drug (ii) treatment plan (iii)specialist involvement (iv) medical records c) To authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of any relevant decisions. d) To authorise the supervisor to forward reports to the Council (in a Medical Council approved format) on a third monthly basis. 2. To engage a mentor. 2. To authorise and consent to any exchange of information between the Medical Council and Medicare Australia and Pharmaceutical Services for the purposes of monitoring compliance with these conditions. 3.These conditions may be altered, varied or removed at the discretion of the Medical Council and the Medical Council is the appropriate body for the purposes of Part 8 of the National Law. 1. The HCCC provided the following overview of principle applicable to this determination: "Governing Principles 23.The Tribunal's jurisdiction is primarily protective in nature, rather than punitive. [5] 24.In exercising its protective jurisdiction, the Tribunal must have consideration for the maintenance of the standards of the medical profession, preservation of public confidence in the profession and, more broadly, the protection of the community. [6] Significantly, the Tribunal, as set out in Re Dr Parajuly [2010] MSWMT 3 at [31], considers the protection of public safety and health as paramount, now affirmed by s3A of the National Law. 25.This general protective principle is now buttressed by specific legislative backing, with public protection being achieved by 'ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner' be registered. [7] 26.This obligation is in addition to, and does not limit, the provisions of section 36(5) of the Civil and Administrative Tribunal Act [8] . In exercising its jurisdiction, the Tribunal is to give primacy to the provisions of the National Law [9] . 27.While s3A and the aforementioned authorities establish protection of public safety as the chief concern, additional considerations including deterring others from engaging in similar conduct are a necessary part of maintaining the standards of the medical profession and thereby ensuring the continuance of public safety and faith in the profession. [10] 28.Indeed, Basten JA, clarifying the intersection of the aforementioned principles, in NSW Bar Association v Meakes [2006] NSWCA 340 at [114], set out the important, but indirect, effects of a disciplinary order, which must be considered when determining the appropriateness of protective orders: a. That it reminds other members of the profession of the public interest in the maintenance of high professional standards; b. That the order may emphasise the unacceptability of the conduct involved in the disciplinary offence; and c. The need for the order to maintain public confidence in the high standards of the medical profession. 29. Having consideration for the authorities, [11] the Tribunal should consider the following matters bearing on protection: a. Any need to protect the general public against further misconduct by the practitioner; b. The need to protect the public through general deterrence of other practitioners; c. The need to protect the public by reinforcing high professional standards and denouncing transgressions; d. The maintenance of public confidence in the profession; and e. The desirability of making available to the public any special skills possessed by the practitioner. 30.In these proceedings, the first four factors above are relevant in considering the protective orders sought by the Complainant. 31.While the purpose of the Tribunal's orders is not punitive, an unavoidable concomitant is the protective orders may, in some circumstances, possess an incidentally punitive character, but this should not be the purpose of the orders so made. [12] " 1. The HCCC made the following concession at the conclusion of the hearing before us. "It would at least be highly likely that the Respondent, if supervised when he first commenced practise in Australia, would have been exposed to the prescribing of S8 and S4D drugs". 2. It was common ground before us, that had the Respondent arrived in Australia from the UK, as a specialist GP, in recent time, he would have been required to be supervised in his practice for the first 12 months of his practising. Is an order for Suspension appropriate? 1. An order for suspension is the second most impactive type of protective order permitted by the National Law, second only to cancellation of registration. Both of those orders are usually reserved for the most serious of professional misconduct. 2. The making of a protective order requires a balance between the requirements which are necessary to protect the health and safety of the public, creating a deterrent effect for other practitioners and complying with the objects and guiding principles specified in s 3 and s 3A of the National Law. 3. Protective orders, although so named, do have punitive impact. Cancellation and suspension fall into the most protective and yet punitive, type of available protective orders. 4. The protective aspect of a suspension order is that the practitioner cannot further harm patients as he/she is unable to practise at all. The punitive aspect is that the practitioner loses an occupation for which they have been trained. They may not be suitable for other occupations. They may be supporting a family which has no other form of support than the income earned by the practitioner. 5. A suspension deprives the public of a medical practitioner, who may have practised in a manner which caused danger to the public, in one identified aspect of medical practice, yet be competent, safe and caring in many other aspects of medical practice. 6. In New South Wales the legislature requires, by s 3A of the National Law, that: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." That does not mean that other considerations, in the application of the legislation, have no place. 7. All that we have said emphasises the great care which the Tribunal takes in making protective orders. 8. Turning then to the current determination, we note that it has been two years since the Respondent was before the Medical Council and was made the subject of orders which restricted his practise by the imposition of conditions attached to his registration. Those restrictions included the embargo upon his right to prescribe S8 and S4D drugs and the requirement for category C supervision. We have heard evidence provided by Dr Stobo, one of the Respondents' supervisors. We note the Medical Council had the power in November 2020, to suspend the Respondent's registration and did not do so. That would not prevent us from doing so at this time, if it was found to be necessary. 9. Turning then to consider whether it is necessary to suspend the Respondent in order to protect the public, and to ensure that health services are provided safely and are of an appropriate quality. We have determined that it is not. In so determining, we would not seek to suggest we do not regard the Respondents conduct, as found by us, not serious misconduct. As stated earlier the Respondent's conduct could have led to serious health implications for the subject patients, including life threatening outcomes. 10. The Respondent has admitted all but one of the Complaints made against him. He has admitted he is guilty of unsatisfactory professional conduct and professional misconduct. His admission of guilt in relation to unsatisfactory professional conduct was restricted to a finding pursuant to s 139B(1)(a). He denied guilt in relation to conduct described in s 139B(1)(l). The HCCC did not pursue a finding under that section of "unethical conduct". We have found he was guilty of improper conduct as defined in s 139B(1)(l). The Respondent admitted he was guilty of unsatisfactory professional conduct in relation to the medical records he had made for the patients the subject of the Complaints. He submitted that the records were not illustrative of conduct which was found to be significantly below the standard expected. None the less, he was contrite about the records he made and readily admitted the records were unsatisfactory and required far more detail than he had included. 11. The Respondent presented before the Tribunal as genuinely remorseful for his conduct which had been identified in the Complaints. He presented as an intelligent and articulate person who clearly has significant skills in medical practice which he has utilised for the benefit of his patients in a busy Western Sydney practice. He presented as genuinely remorseful for his omissions in relation to the providing of prescriptions for S8 and S4D drugs. He now appreciates that what was provided by him as motivated by compassion to his patients, had the potential to harm them and was not helpful in leading them to a life where they were no longer dependent upon S8 and/or S4D drugs. He understands that the prescription of S8 and S4D drugs has the potential to lead patients into contact with criminal behaviour and culture. He appears to now understand the regulations, at both State and Federal level, relating to the prescription of S8 and S4D drugs. 12. Whilst we understand that the Respondent was not provided with supervision of his practice when he commenced practising in Australia, we are concerned that he did not take it upon himself to learn about restrictions which may have been imposed by Australian and NSW health authorities, in relation to prescribing. Simple common sense should have alerted him to the potential that there would be strict conditions applying to the prescription of such powerful and potentially dangerous drugs. 13. We have concluded that the Respondent has learned a lesson from the imposition of the conditions on his registration, made two years ago by the Medical Council. He has shown he was humiliated and felt shame for his conduct. So much is illustrated by his approach to this proceeding where he has readily admitted, for the most part, his guilt. We are satisfied that if his prescription rights for S8 and S4D drugs are restored, he will rigorously comply with all restrictions and follow the Best Practice requirements in relation to that prescription. We would state however, that had we been presiding on this determination in closer proximity to the date upon which the Medical Council made its determination in November 2020, we may have reached a decision that suspension of the Respondent's registration, was an appropriate protective order to make in this case. 14. The Respondent's counsel submits that an appropriate protective order would include a reprimand by the Tribunal. A reprimand would be a visible reminder, to the Respondent, recorded on his registration details. It will remind the Respondent of the need to take the upmost care in the practise of his profession. It will remind him of the need to understand all the regulatory requirements which may pertain to the practise of a particular type of medicine, which he sees only in a small number of his patients. It will serve a purpose of deterrence when this determination is published and on the publicly available record. 15. Turning then to the question of the conditions which might be imposed upon the registration of the Respondent, we have set out earlier the list of conditions which are sought by the HCCC and suggested by the Respondent. 16. The HCCC seeks a condition that the Respondent not be permitted to possess, supply, administer or prescribe any Schedule 8 or Schedule 4D benzodiazepine drugs. It seeks supervision at Category C level. It seeks specific education. It seeks an audit of the Respondent's medical practice. It seeks the Medical Council of NSW be appointed as the review body pursuant to s 163 and 163C of the National Law. 17. The Respondent suggests he be required to submit to conditions which include category C supervision. That he be required to engage a mentor. That he authorises an exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with conditions. That the Medical Council have discretion to vary or remove the conditions imposed. 18. We agree with each of the parties that it is necessary to continue a period of supervision at Category C level. That should address compliance with medical record making and the prescription of S8 and S4D drugs. 19. We propose a restriction of the prescribing of the Respondent for S8 and S4D drugs until such time as he has completed a course of education, which we will specify, and he has provided to the Medical Council with evidence of the satisfactory completion of that course. 20. We do not propose to require an audit of the Respondent's medical practice. He has been under supervision for two years now and that includes a period of 12 months with Dr Stobo, a highly qualified practitioner, who has acted as an examiner and trainer of medical students for the Royal Australian College of General Practitioners. We accept the tenor of his evidence that the Respondent is practising medicine well and appropriately. We consider the supervision requirements we will require, will act as an audit of the prescribing and medical record making of the Respondents practice. 21. We propose that the Medical Council of NSW be appointed the reviewing body pursuant to s 163 and 163C of the National Law. 22. In relation to the further education, we propose the Respondent undertakes the suggestion of the HCCC as to the model of education which will further equip the Respondent in his medical practise. Costs 1. The HCCC seeks an order for costs. The question of costs was not addressed in the hearing before us. We propose to allow the parties 21 days to consider the published judgment and negotiate on the matter of a costs order to be made. If they are able to reach an agreement, a proposed order can be provided to the Tribunal Registry and we will consider the making of that proposed order. Orders 1. We will make the following orders: 1. Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law (the National Law) Dr Javaheri (the practitioner) is reprimanded. 2. Pursuant to section 149A(1)(b) of the National Law the Tribunal directs that the following Conditions be imposed on the practitioner's registration: Practice Conditions 1. Until such time as the practitioner has completed the education condition set out in these conditions he is not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). AND; 2. The practitioner is to forthwith provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug. 3. Until such time as the practitioner has completed the education condition set out in these conditions he is not to possess, supply, administer or prescribe any benzodiazepine derivatives including those separately specified in the Schedules of the Poisons Standard. 4. To practise under Category C 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. 5. At each supervision meeting the practitioner is to review and discuss his practise of medicine with his approved supervisor with particular focus on: 1. Prescribing, including the prescribing of any Schedule 8 and Schedule 4 Appendix D medications 2. Clinical reasoning 3. Medical record keeping - including a review of 6 patient records from the preceding month, selected at random by the supervisor 4. Medico-legal issues and requirements 1. The practitioner is to authorise the Medical Council of NSW to provide approved supervisors with a copy of the decision which imposed this condition. Education Conditions 1. To complete within 12 months of the date of this order, the "Issues in General Practice Prescribing" course organised by Monash University. 2. Within 1 month of the date of this order he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. 3. Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. 4. To bear responsibility for any costs incurred in meeting this condition. 5. In the event that the "Issues in General Practice Prescribing" course is unavailable, he 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 this order. 6. The appropriate review body for the purpose of a review under sections 163 - 163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. 7. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the Respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The parties are within 21 days of the publication of this determination, to take steps to negotiate the order for costs which might be made in this matter. If they are able to agree upon an order which might be made they are to provide to the registry of the Tribunal a minute of consent order with request that the order be made. In the event they are unable to agree they are each to provide to the Registry and to the other, a written submission (restricted to 4 A4 pages) and a minute of the order sought, on or before 16 January 2023. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Endnotes 1. Ex A1 Vol 1 Tab 9 2. Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [62] – [66]; Health Care Complaints Commission v Balafas (No 4) [2021] NSWCATOD 209; Health Care Complaints Commission v Carr [2020] NSWCATOD 131 at [99]; Health Care Complaints Commission v Wardman [2020] NSWCATOD 126 at [147]; The contrary interpretation is found in Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159] – [160] and HCCC v Yildirim [2021] NSWCATOD 146 at [186] – [189]. 3. See HCCC v Phung (No. 1) [2012] 1 NSWDT at [68] and HCCC v Elliott [2017] NSWCATOD 20 at [55] 4. See also Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40]-[41] 5. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; HCCC v Gillett [2007] NSWNMT 7 at [13] and HCCC v Rutner [2009] NSWD 2 at [14] 6. Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] and Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113] 7. National Law s3(2)(a). 8. See also Clause 9 Schedule 5 of CAT Act 9. Section 165A of the National Law 10. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; Clyne v New South Wales Bar Association (196) 104 CLR 186, 201-202 and New South Wales Bar Association v Evatt (1968) 117 CLR 117, 183-184 11. See Skinner v Beaumont (1974) 2 NSWLR 106, 109; Law Society of NSW v Foreman (1994) 34 NSWLR 408, 471B; Saville v HCCC [2006] NSWCA 298 at [45]; Lee v HCCC [2012] NSWCA 80, at [20]-[21]; Re Dr Parajuli [2010] NSWMT 3 at [32]; HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175] and HCCC v King [2013] NSWMT 9 at [27]. 12. Lee v HCCC [2012] NSWCA 80 at [20] and [31]; Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) NSWLR 523 at [83]; HCCC v Platt [2013] NSWMT 14 at [55] and [71] 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: 13 December 2022