Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Houfani [2022] NSWCATOD 186 Hearing dates: 9 - 10 May 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr J Fogarty, Senior Member Dr H Haikal-Mukhtar, Senior Member J Houen, General Member Decision: The Tribunal, having found Dr Houfani guilty of professional misconduct, makes the following orders: Reprimand (1) Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the Respondent. Practice Conditions (2) Under section 149A(1)(b) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the Respondent's registration: Change of Practice (3) To obtain Medical Council of NSW approval prior to changing the nature, scope or place of his practice. Patient Limit (4) Not to see more than 40 patients per day, including patients seen in residential aged care facilities or home visits. Schedule 8 drugs and Schedule 4D drugs (5) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). (6) Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). Audit (7) To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: (a) The auditor is to assess his compliance with good medical record-keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to: (i) Quality of records (ii) Patient Management (iii) Prescribing (b) To authorise the auditor(s) to provide the Council with a report on their findings. (c) To meet all costs associated with the audit(s) and any subsequent reports. Supervision (8) 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 and: (a) During the first six months of supervision, one supervision meeting per month is to be replaced by an observation session with the Council-approved Supervisor of at least one hour's duration. Observation sessions are to alternate between: (i) The Supervisor observing the practitioner conduct at least three patient consultations; (ii) The practitioner observing the Supervisor conduct at least three patient consultations; (iii) Details and feedback about the observation sessions are to be included in supervision reports. (b) At each supervision meeting, the Respondent is to review and discuss his practice with his approved Supervisor with a particular focus on: (i) Appropriate assessments and management (ii) Appropriate prescribing (iii) Medical records and documentation (iv) Compliance with conditions (c) To authorise the Medical Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions. (d) Not to practise until a supervisor has been approved by the Medical Council of NSW. Information Exchange (9) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. (10) To authorise the Medical Council of NSW to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. Costs of Compliance (11) To bear all costs arising out of compliance with these conditions. Review (12) 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. (13) 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. Costs of the Tribunal Proceedings (14) The Respondent is ordered to pay the Applicant's costs of these proceedings, as agreed or assessed. Catchwords: HEALTH — Professional registration and discipline — finding of professional misconduct – protective orders – reprimand – conditions – costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Chen [2016] NSWCATOD 144 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Noureddine Houfani (Respondent) Representation: Counsel: E Bayley, Solicitor-Advocate (Applicant) Dr P Dwyer, Barrister (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2021/00262359 Publication restriction: A non-publication order with respect to the names of seven patients was made on 10 May 2022. REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (the HCCC, the Applicant, or the Commission), pursuant to an Amended Complaint filed as the hearing commenced, seeks from this Tribunal a range of "protective orders" against Dr Noureddine Houfani (Dr Houfani or the Respondent), including a Reprimand, Suspension of his registration for six to twelve months, and the imposition (or extension) of a series of conditions on his registration. 2. Dr Houfani has been practising under a regime of conditions since 29 May 2020, following a "s 150 process", under the Health Practitioner Regulation National Law (NSW – the National Law), and the Complaint now before this Tribunal concerns allegations of poor prescribing and poor record-keeping practices on his part in respect of seven patients (known as Patients A to G), over a three-year period (29 January 2017 to 21 June 2020). 3. The details of the HCCC's four component sub-complaints will be set out in full shortly, but they allege unsatisfactory professional conduct in respect of each patient, so serious as to found a finding of professional misconduct against Dr Houfani, and so justify suspension (or cancellation) of his registration. 4. In his detailed written statement to the Tribunal, Dr Houfani admits all components of the HCCC's Amended Complaint (Ex R1, tab 1, par 15.1), and accepts that he should be reprimanded, and have conditions imposed on his registration, but he resists any suspension of his registration, and any condition requiring him to practise only in a group setting (see competing schedules of conditions filed in the Tribunal on 9 and 10 May 2022 respectively). 5. An oral hearing was conducted on 9 – 10 May 2022. Both counsel provided written submissions, and addressed the Tribunal orally. When reserving our decision, we required that any supplementary written submissions be filed by the Respondent on or before 13 May 2022, and by the Applicant in response on or before 20 May 2022. 6. On 13 May 2022, solicitors for Dr Houfani submitted, as arranged during the hearing, a schedule of his referrals of Patients A to G to various specialists, and of reports he received from those doctors. 7. On 28 June 2022, Dr Houfani's solicitors submitted to the Tribunal, with the consent of the HCCC, two letters Dr Houfani had received from the Medical Council of NSW, both dated 24 June 2022, and both relevant to the Tribunal's functions in this matter. Sources of Evidence The Health Care Complaints Commission 1. The HCCC relies upon three volumes of medical records and other documentary material (Ex A1), and on expert written and oral evidence from Associate Professor Jonathan Samuel Levy (Dr Levy). 2. Exhibit A2 included a schedule entitled "Compliance History", which noted: 1. That reviews of Medicare data for the period 1 June 2020 to 15 August 2021 had identified 17 prescribing anomalies on Dr Houfani's part, in respect of which the Medical Council had written to him on 14 April 2022 (letter also included in Exhibit A2) requesting his response by 22 April 2022, which response was expected on 29 April 2022; and 2. That the medical records audit which was envisaged by condition 4 imposed after the s 150 proceedings, and done by Dr Simon Cowap, on 19 May 2021, had resulted in a decision to hold a further audit "within six months" of July 2021 (it was not held until May 2022). Dr Houfani 1. Dr Houfani gave oral evidence, but also relies upon a folder of documents filed on 30 March 2022 (Ex R1) – which includes a lengthy statement by him, a number of references, records of CPD undertaken and planned, and the Audit Report, prepared by Dr Cowap, and dated 10 June 2021. 2. He also relies on an additional reference (Ex R2), and on a submission made on his behalf to the Medicare Data Compliance Review on 29 April 2022, with attachments, covering the period 1 June 2020 to 15 August 2021 (Ex R3). 3. The two Medical Council letters of 24 June 2022, which Dr Houfani submitted to the Tribunal on 28 June, concerned: 1. A note that the 29 April data review report, to which we referred above, indicated that Dr Houfani had breached the drug prescribing limitation included amongst his s 150 conditions, on three occasions, and warned him not to infringe again; and 2. A second medical records Audit Report, this one dated 4 May 2022, and prepared by Dr Lesley Cotterell, which found Dr Houfani's medical records "satisfactory overall", with the result that the relevant condition on his registration (number 4) would be discharged. He was encouraged to undertake further training on the "optimal use" of practice software. The Amended Complaint 1. The Amended Complaint filed by the HCCC on 9 May 2022 briefly outlined Dr Houfani's professional background, and went on to allege that he, "the Practitioner": "COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine Each particular of Complaint One justifies an individual finding of unsatisfactory professional conduct. PARTICULARS OF COMPLAINT ONE 1. Between 29 January 2017 to 21 June 2020, the practitioner failed to conduct appropriate assessments of Patients A, B, D, E, F, and G when prescribing Schedule 8 ("S 8") drugs to each patient in that he failed to: (a) take a detailed patient history and examination prior to the first occasion of prescribing the drug; (b) outline a treatment plan to monitor progress; (c) conduct an examination at regular intervals during the treatment; (d) discuss the side effects and potential drug interactions when prescribing a new drug. 2. Between 29 January 2017 to 21 June 2020, the practitioner failed to conduct an appropriate assessment of Patients B, C, E, and G when prescribing Schedule 4D ("S 4D") drugs to each patient in that he failed to: (a) take a detailed patient history and examination prior to the first occasion of prescribing the drug; (b) outline a treatment plan to monitor progress; (c) conduct an examination at regular intervals during the treatment; (d) discuss the side effects and potential drug interactions when prescribing a new drug. 3. Between 29 January 2017 to 21 June 2020, the practitioner failed to conduct an appropriate assessment of Patients A, B, C, D, E, F, and G when prescribing Schedule 4 ("S 4") drugs to each patient in that he failed to: (a) take a detailed patient history and examination prior to the first occasion of prescribing the drug; (b) outline a treatment plan to monitor progress; (c) conduct an examination at regular intervals during the treatment; (d) discuss the side effects and potential drug interactions when prescribing a new drug. 4. Between 1 February 2017 to 19 May 2020, the practitioner prescribed Schedule 8 drugs of addiction to Patients A, B, and F on the dates and in the manner as set out in Schedule H to the Complaint in circumstances where the practitioner had formed, or ought to have formed the opinion that the Patient was a drug dependent person within the meaning of Section 27 of the Poisons and Therapeutic Goods Act 1966 (NSW) (the PTG Act) 5. The practitioner prescribed Schedule 8 drugs of addiction to Patients A, B, and F, on the dates and in the manner as set out in Schedule H to the Complaint without obtaining a proper authority to prescribe from the NSW Ministry of Health, contrary to s 28(3) of the PTG Act. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine Each particular of Complaint Two justifies an individual finding of unsatisfactory professional conduct. PARTICULARS OF COMPLAINT TWO Patient A 1. The practitioner inappropriately prescribed a combination of S 8 and S 4 drugs to Patient A on the dates and in the quantities as set out in Schedule A to the Complaint in circumstances where: (a) the practitioner failed to: i. appropriately manage Patient A's underlying condition; ii. undertake appropriate investigations into Patient A's condition; iii. exhaust all avenues for alternative management of Patient A's condition; and (b) the concomitant and ongoing use of the S 8 and S 4 drugs exposed Patient A to the risks associated with the medication and the interactions between medication. 2. Between 4 December 2017 to 19 May 2020, the practitioner failed to make a timely referral to a pain specialist for advice and/or assistance in relation to his ongoing care and management of Patient A. 3. The practitioner failed to actively follow up with a pain physician with respect to Patient A, in circumstances where he wrote a referral to the Pain Clinic at Canterbury Hospital on 12 March 2020. Patient B 4. The practitioner inappropriately prescribed a combination of S 8 and S 4D, and S 4 drugs to Patient B on the dates and in the quantities as set out in Schedule B to the Complaint in circumstances where: (a) the practitioner failed to: i. appropriately manage Patient B's underlying condition; ii. undertake appropriate investigations into Patient B's condition; iii. exhaust all avenues for alternative management of Patient B's condition; and (b) the concomitant and ongoing use of the S 8, S 4D, and S 4 drugs exposed Patient B to the risks associated with the medication and the interactions between medication. 5. Between 1 February 2017 to 14 May 2020, the practitioner failed: (a) to make a timely referral to a pain specialist for advice and/or assistance in relation to his ongoing care and management of Patient B's physical complaints and pain management issues; and (b) to make an appropriate referral for specialist advice and/or assistance in relation to his ongoing care and management of Patient B's insomnia. 6. The practitioner failed to follow up with a pain physician with respect to Patient B, in circumstances where he wrote a referral to the Pain Management Unit at St George Hospital on 26 May 2017. 7. The practitioner failed to act upon specialist advice and/or assistance received from a pain medicine specialist with respect to Patient B, in circumstances where: (a) on 17 April 2019, he received a letter from Dr Alister Ramachandran stating that Patient B should have her medication weaned down with time; (b) on 25 June 2019, he received a letter from Dr Andrew Paterson stating that Patient B should: i. aim for no more than 2 to 3 Oxycodone Tablets per day; ii. discuss with her general practitioner the pattern of ongoing prescribing. Patient C 8. The practitioner inappropriately prescribed a combination of different S 4 drugs to Patient C on the dates and in the quantities as set out in Schedule C to the Complaint in circumstances where: (b) the practitioner failed to: i. appropriately manage Patient C's underlying condition; ii. undertake appropriate investigations into Patient C's condition; iii. exhaust all avenues for alternative management of Patient C's condition. 9. Between 29 January to 17 May 2020, the practitioner failed to make timely referrals for specialist advice and/or assistance in relation to his ongoing care and management of Patient C. 10. The practitioner failed to actively follow up with a pain physician with respect to Patient C in circumstances where he wrote a referral to the Pain Clinic at Liverpool Hospital on 7 March 2018. Patient D 11. The practitioner inappropriately prescribed a combination of S 8 and S 4 drugs to Patient D on the dates and in the quantities as set out in Schedule D to the Complaint in circumstances where: (a) the practitioner failed to: i. appropriately manage Patient D's underlying condition; ii. undertake appropriate investigations into Patient D's condition; iii. exhaust all avenues for alternative management of Patient D's condition; and (b) the concomitant and ongoing use of the S 8 and S 4 drugs exposed Patient D to the risks associated with the medication and the interactions between medication. 12. Between 14 February 2017 to 1 June 2020, the practitioner failed to make appropriate and/or timely referrals for specialist advice and/or assistance in relation to his ongoing care and management of Patient D. Patient E 13. The practitioner inappropriately prescribed a combination of S 8, S 4D, and S 4 drugs to Patient E on the dates and in the quantities as set out in Schedule E to the Complaint in circumstances where: (a) the practitioner failed to: i. appropriately manage Patient E's underlying condition; ii. undertake appropriate investigations into Patient E's condition; iii. exhaust all avenues for alternative management of Patient E's condition; and (b) the concomitant and ongoing use of the S 8, S 4D, and S 4 drugs exposed Patient E to the risks associated with the medication and the interactions between medication. 14. Between 17 August 2017 to 19 March 2020, the practitioner failed to make appropriate and/or timely referrals for specialist advice and/or assistance in relation to his ongoing care and management of Patient E. Patient F 15. The practitioner inappropriately prescribed a combination of S 8 and S 4 drugs to Patient F on the dates and in the quantities as set out in Schedule F to the Complaint in circumstances where: (a) the practitioner failed to: i. appropriately manage Patient F's underlying condition; ii. undertake appropriate investigations into Patient F's condition; iii. exhaust all avenues for alternative management of Patient F's condition; and (b) the concomitant and ongoing use of the S 8 and S 4 drugs exposed Patient F to the risks associated with the medication and the interactions between medication. Patient G 16. The practitioner inappropriately prescribed a combination of S 8 and S 4D, and S 4 drugs to Patient G on the dates and in the quantities as set out in Schedule G to the Complaint in circumstances where: (a) the practitioner failed to: i. appropriately manage Patient G's underlying condition; ii. undertake appropriate investigations into Patient G's condition; iii. exhaust all avenues for alternative management of Patient G's condition; and (b) the concomitant and ongoing use of the S 8, S 4D, and S 4 drugs exposed Patient G to the risks associated with the medication and the interactions between medication. 17. During the period 11 April 2018 to 1 May 2020, the practitioner failed to make appropriate and/or timely referrals for specialist advice and/or assistance in relation to his ongoing care and management of Patient G. COMPLAINT THREE is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) ("the 2016 Regulation") Each particular of Complaint Three justifies an individual finding of unsatisfactory professional conduct. PARTICULARS OF COMPLAINT THREE 1. The practitioner contravened clauses 1(2) and (3) of Schedule 4, of the 2016 Regulation in respect of his medical records for Patients A to G in that he failed to record: (a) information relevant to his assessment, diagnosis and treatment progress of each patient at each visit; (b) particulars of any clinical opinion reached by the practitioner; (c) any plan of treatment for each patient; (d) notes about the information or advice given to each patient in relation to medical treatment; (e) written consent given by each patient in relation to a medical treatment and/or service. 2. The practitioner contravened clauses 3(1) and (3) of Schedule 4, of the 2016 Regulation in respect of his medical records for Patients A to G in that the record did not: (a) contain the level of detail appropriate to the patient's case; (b) include sufficient information to allow another medical practitioner to continue management of the patient's case. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Complaints One, Two and Three, and the particulars therein are repeated and relied on cumulatively." 1. The Amended Complaint attached 31 pages of schedules: 1. One schedule identified Patients A to G; 2. Several schedules set out prescribing tables for each of those patients; and 3. One schedule (schedule H) indicated, in the case of each of the Patients A, B and F (see Complaint One, particulars 4 and 5), details of what Dr Houfani's notes indicated on each occasion in respect of his obtaining the requisite authority to prescribe Oxycodone, and forming an opinion on whether the patient concerned was a "drug dependent person". The Facts Personal Background 1. Dr Houfani was born in Algeria on 22 September 1964, and completed his primary university medical training there in 1991. He migrated to Australia in 1992, married here in December 1993, and obtained his Australian Medical Council Certificate in 2001. He first worked as a doctor in Tasmania. 2. He became registered in NSW on 2 August 2002, and worked in general practices (GP) in Queensland in 2005–6 . In 2005, he became a Fellow of the RACGP, and then worked in general practices in Busby, Lakemba, Bankstown and Greenacre between 2006 and 2014, before opening his own practice, "S & Y Houfani Family Practice", in Lakemba, in October 2015. 3. While he was particularly interested in paediatrics and dermatology, his solo general practice was established on a walk-in bulk-billing basis, but he also developed a practice attending to patients in four local aged care facilities (Ex A1, tab 19, p 1), namely: St Basil's Nursing Home, Lakemba, Laurantos Village, Lakemba, Masonic Village, Lakemba, and Regis Belmore Nursing Home. 4. At the hearing it was suggested that his patients represented 60 or more cultural backgrounds, and age groups from the 20s to the 90s. The Masonic Village provided him with about 14 patients, and each of the other aged care facilities, three to five. He was, at the time of the hearing, in the process of moving his practice to an appointment basis. Dealings with the Authorities, and Training 1. He was the subject of a complaint in 2011, but it was discontinued. He then came under the notice of the Practitioner Review Program (PRP) in mid-2018 over billing Medicare for Chronic Disease Management (CDM) items. After its review, the PRP expressed concern about Dr Houfani's prescribing of pain medications, and, after he made submissions in July 2019, he was referred, in September 2019, to the Professional Services Review (PSR – Director Professor Julie Quinlivan), which commissioned a review of 50 of Dr Houfani's patient records and met with him and his solicitor on 17 December 2019. 2. The PSR issued a report on 3 February 2020, expressing concerns about his prescribing, his "clinical input", and his inadequate medical records. He responded to the report on 13 March 2020, and subsequently entered into an agreement with PSR, effective 27 July 2020, involving his being reprimanded, and disqualified for 12 months (to 27 July 2021) from charging certain item numbers, and his refunding of $170,000 to Medicare. 3. Throughout these ongoing processes, Dr Houfani undertook relevant training programmes, some auspiced by Morrison Consulting and Advisory (Morrison – see Ex R1, tab 18). Morrison commented, in February 2022 (at p 5), that he "demonstrate[d] a satisfactory understanding of the central concepts in relation to professionalism, expectations of registered health practitioners, and a refreshed understanding of the regulation of health practitioners in Australia", and (at p 7) that he "appear[ed] to be a kind, compassionate medical practitioner, whose primary driver was to care for his patients within a diverse cultural environment". Section 150 Proceedings 1. The s 150 proceeding, to which we earlier referred, was held on 26 May 2020 (Ex A1, tab 5), with reasons published on 16 June 2020 (Ex A1, tab 4). As a result of it, various conditions were imposed on Dr Houfani's registration. As subsequently amended on 11 January 2021, those conditions have provided (see Certificate at p 3 of Ex A2): 1. Not to see more than 40 patients per day in any practice in which he works. The restriction on patient numbers does not include patients seen in residential aged care facilities or home visits; 2. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act, 1966 (NSW); 3. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW); 4. To submit to an audit of his medical practice by random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit is to be held within six months from 29 May 2020 and subsequently as required by the Council; 2. The auditor is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to: 1. Quality of records; 2. Patient management; 3. Prescribing; 1. To authorise the auditor(s) to provide the Council with a report on their findings; 2. To meet all costs associated with the audit(s) and any subsequent reports; 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. (Condition 4 has recently been discharged, by the Medical Council, subsequent to our hearing). 1. The s 150 panel noted that Dr Houfani was a family man, fluent in four or five languages; that his patients were mostly older, with chronic and complex medical issues; that he was unclear about the statutory processes for prescription of scheduled medicines, and generally unsophisticated in his approach to "narcotic doctor shopping"; that he was overwhelmed by the number and complexity of the patients under his care; that his record keeping remained poor; and that he needed his own GP and further relevant training. (The Cognitive Institute was recommended). 2. Dr Houfani told the s 150 panel that he had reduced the number of patients for whom he prescribed Schedule 8 and Schedule 4D medications, and also reduced the quantities he prescribed. Those he saw in his clinic were "now" seeing a pain management specialist, and those in aged care were reviewed by a geriatrician (Ex A1, tab 4, p 4). 3. The s 150 panel also interrogated his 13 March 2020 claim that, although he conceded that his "clinical records were not to standard", he spent a lot of time with his patients "explaining conditions and management plans" (Ex A1, tab 4, p 5). He explained to the panel (Ex A1, tab 5, pp 21 and 28): "I would never cause harm to my patients, I love my patients very much… I just want to have the patients without pain…" "… maybe one day here or there… I don't write notes because I was busy with a patient [but] that doesn't reflect my care for the patient…". 1. The s 150 panel concluded that the public would be adequately protected by the conditions we quoted above being imposed on Dr Houfani's registration, rather than needing his registration to be suspended, and that he should be restricted to 40 patients per day in addition to his patient load in residential aged care, which latter load he said he would not seek to increase, allowing it to reduce by natural attrition over time. 2. The s 150 panel referred the matter to the HCCC for investigation as a complaint. 3. On 18 June 2020, Dr Houfani attended the Pharmaceutical Regulatory Unit (PRU), and signed orders prohibiting him from prescribing Schedule 8 and Schedule 4D drugs. Dr Levy 1. The HCCC referred its investigation findings to Dr Levy for expert opinion (see in Ex A1, Dr Levy's CV at tab 10, the referral of 23 November 2020 at tab 6, Dr Levy's primary report of 16 December 2020 at tab 7, further questions posed to him on 22 January 2021 at tab 8, and his supplementary report of 31 January 2021 at tab 9. See in Ex A2 an exchange of emails between the HCCC and Dr Levy on 4 – 5 May 2022). 2. In his report of 31 January 2021 (Ex A1, tab 9), Dr Levy repeatedly attributed Dr Houfani's errors to "the fact that he had not investigated and managed [each of the seven patients] properly". He invariably added: "…the duration of prescribing and potential for drug interaction were simply symptoms of Dr Houfani's underlying management deficits… [which] are significantly below the standard expected, and really formed the nub of the case against Dr Houfani". 1. Dr Levy concluded, and opined, that Dr Houfani performed, in the case of each Patient A to G, at a level significantly below the standard reasonably expected of a GP with his level of training and experience, allowing that Patient F was a complex patient with multiple problems. Dr Levy was particularly critical of Dr Houfani (see tab 7, p 40) for his: "cynical 'factory-style' throughput of patients", motivated by money, "but with one eye kept on the potential medico-legal and Medicare pitfalls that might be brought about via audit. Hence, the quick 'shortcut style' padding of notes with irrelevant information". 1. Dr Houfani rejects this definition of his motivation, while accepting many of Dr Levy's criticisms of his mode of practice (Ex A1, tab 27, pars 2.8, and 9.1–10.4), but, on 5 May 2022 (Ex A2), Dr Levy confirmed that none of Dr Houfani's s 40 submissions of 10 March 2021 (Ex A1, tab 27), nor his statement to this Tribunal dated 14 March 2022 (Ex R1, tab 1), affected his conclusions. 2. Dr Levy was cross-examined at our hearing, and adhered to his written opinions. He considered that Dr Houfani had caused some damage to the public, but, in his balanced presentation before us, he admitted being impressed by Dr Houfani's efforts to improve. Overall, we found Dr Levy to be sympathetic, but firm. Dr Houfani's Response to the Complaint 1. On 10 February 2021, the HCCC formally put its case to Dr Houfani, and he responded on 10 March 2021 (see Ex A1, tabs 24–27). 2. We have referred to some of his responses already, but would note here (from tab 27) the following, which were reflected again in his evidence to this hearing: 2.7 I agree with all the general standards described by the expert reviewer in the report dated 16 December 2020 (part 1). I did not have that level of knowledge at the relevant times (nor did I adequately apply the knowledge I did have) and so failed to meet the standard expected of me for the seven patients. 3.3 … (a) At the end of 2019 I requested that some of my nursing home patients receive a pain management review and I informed some of my patients I would not continue to prescribe S8 medication in the absence of current pain management specialist overview and engagement. 3.4 … (b) … Prior to the s 150 hearing I was seeking (sic) approximately 20 to 30 patients a week. Since the s 150 hearing this has dropped to around 10 to 15 patients a week. 6.7 If I ever have my S8 and S4D authorities restored, I will ensure I abide by the PTGA/PTGR and professional standards for prescribing such medication. 10.1 My care and treatment of the seven patients was significantly below the standard reasonably expected of me for the stated periods and I will be forever affected by that failing. 10.2 I agree my 'underlying management deficits' (the expression used by the expert) did place the patients at risk and I am personally devastated by this recognition. I thank the expert reviewer for recognising that some patients were very difficult to manage and that fortunately, there was no adverse outcome from the concurrent prescribing of combination medications such as Oxycodone and a benzodiazepine (at least not known to me). 10.3 I became very busy very quickly and let my standards drop. I was working too long and making poor quality notes to meet the patient load. I was not dedicating the time needed for good patient care… 10.4 … I have a responsibility to ensure I practise medicine safely and effectively and I failed to meet that responsibility for these 7 patients. 10.5 I have worked hard to identify and stop poor practice and I have worked hard to plug my gaps in knowledge. 1. In his statement for our hearing, dated 14 March 2022 (Ex R1, tab 1), Dr Houfani records (par 7.1(g)) that, also in early 2021, he considered closing his solo practice and returning to Haldon Street Medical Centre, but he quickly reversed that plan (see tab 22 at p 138). He does, however, keep in regular contact with that practice. Two Audits of Medical Records 1. In May 2021, the Medical Council commissioned Dr Cowap to conduct his audit of Dr Houfani's medical records, as required by the May 2020 conditions. In his conclusion dated 10 June 2021 (Ex R1, tab 22, p 141), Dr Cowap said: "Dr Houfani's notes do demonstrate some improvement in recent entries. However, his summary data and recording of preventative activities is significantly incomplete and his individual consultation notes often lack adequate detail. His medical history tab in particular is cluttered with excessive and irrelevant entries, which get imported into correspondence and care plans. He makes excessive use of generic entries in his progress notes and his care plans, and his referral letters lack detail. On occasions his actions do not correlate with what is recorded in the notes. Dr Houfani presented as a very committed practitioner who has a large cohort of complex patients, and the assessor accepts that he mostly knows his patient histories very well. However, even as a solo practitioner,… he is required to keep notes that meet legislative standards and these do not." 1. Dr Cowap had earlier noted (at p 139): "Dr Houfani can find it hard to stick to the 40 patients a day condition as he has many patients who wish to see him… [He] now understands it is simply 40 patients a day. He says that if he exceeded his cap occasionally it was due to [a] misunderstanding, which has since been corrected (and this was reinforced by the assessor). The S8/S4D restriction causes him some difficulty with nursing home patients, but he has found another doctor who visits the same RACF to take over prescribing for patients who require these medications. It is not a problem in the surgery, and indeed he says he finds it 'more relaxing' to have the condition and would not seek to have it lifted in this context. Dr Houfani is also restricted by the PSR from doing care plans." 1. In anticipation of the further audit then envisaged, and since conducted, Dr Houfani continued his training through the Cognitive Institute and Morrison (Dr Andrew Broad), including in late 2021 and early 2022, and applied his learnings to his practice (statement at Ex R1, tab 1, pars 8.5–8.11, and see tabs 17 and 18). 2. In his statement of 14 March 2022 (in section 14 of Ex R1, tab1), just prior to his formal admission of the four complaints (in section 15.1), Dr Houfani repeated, by way of "Reflection", many of the comments he had made in his formal response quoted above (at [35]), and went on to add: "14.2 … I thank the expert reviewer for recognising that some patients were very difficult to manage and that fortunately there was no adverse outcome from the concurrent prescribing of combination medications such as Oxycodone and a benzodiazepine (at least not known to me). … 14.5 … The Medical Council has given me direction for improvement which I have taken. I have also made changes suggested by Dr Cowap and Dr Broad. 14.6 I do not seek to change any of my conditions on my registration at this point in time. I want to see how I go with the next medical records audit and implement any further changes required. I have been working hard to improve my record keeping and hope that will result in a satisfactory outcome at the next audit. 14.7 I still love my work as a GP. The last few years have been challenging with the combination of the conditions on my registration and COVID-19. My staff have remained loyal and I have a supportive peer network around me. I hope the Tribunal accept my contrition and allow me to continue to practice with conditions in place." 1. In a supplementary document (concerning Patient A – Ex R1, tab 2), Dr Houfani says of his poor record-keeping (par 1.3, p 24): "… I understand that good quality notes help another practitioner to take over the care of the patient. It's all about the best care for the patient. I did not have that focus in mind when I made my notes. I was too rushed and only recorded what I felt I needed to record for my benefit. My practice has improved over the years with education and effort on my part to implement my learnings. Most recently Dr Andrew Broad from Morrison Consulting and Advisory has helped me to improve my records." 1. He also attaches (at tab 18) a report on his education programme from Morrison, which includes the following (at pp 126 and 128): "In summary, despite short responses to workbook questions, Dr Houfani was able to demonstrate a satisfactory understanding of the central concepts in relation to professionalism, expectations of registered health practitioners and a refreshed understanding of the regulation of health practitioners in Australia. … Dr Houfani participated well throughout the education programme and demonstrated that he had reflected on the circumstances which gave rise to the complaint. He appears to be a kind, compassionate medical practitioner whose primary driver is to care for his patients within a diverse cultural environment. He acknowledged an improved understanding of the purpose of regulation being to protect the public. He also stated that he had a better appreciation that being a registered medical practitioner imposed significant professional obligations and responsibilities. It was evident that Dr Houfani was nervous throughout the sessions and expressed gratitude for the support and clarity provided by the facilitator. It was also clear that although Dr Houfani is comfortable working in his solo practice, the lack of collegial support is missing for him since leaving a group practice. He reiterated a number of times that he is very busy, and this creates some pressure on him especially with documentation. The suggestions made by the facilitator regarding length of consultation times, use of a systematic approach to information gathering and the ability to say no in appropriate situations, should create a less pressured environment for Dr Houfani to complete his medical notes in a timely manner. The additional support of the practice registered nurse to comprehensively document relevant nursing activity will complement the clinical records and potentially reduce duplication. Applying the concepts and principles addressed during the education programme will now be a matter for Dr Houfani to incorporate into his practice." 1. The follow-up audit was carried out on 4 May 2022 by Dr Cotterell, just prior to our hearing, and the outcome was notified to Dr Houfani and to the Tribunal in late June 2022 while we were reserved on these reasons. The Medical Council in June 2022 1. We turn now to consider the two Medical Council letters of 24 June 2022, received by the Tribunal many weeks after our hearing concluded. 2. The letter concerning Dr Cotterell's Audit Report says: "The Council's Case Management Committee has considered the report and resolved: • The audit report is noted; • A further audit is not required and condition 4 is removed from your registration; • The Council strongly encourages you to work with your Primary Health Network, your software provider and your MII to undertake further training in the optimal use of your practice software particularly with respect to organisation, recall and summary functions. In reaching this decision the Committee noted that the medical records were considered satisfactory overall and the auditor determined that another practitioner could take over the care of the patients based on the majority of the records reviewed. AHPRA has been notified of the change to your conditions…" 1. In the other letter of the same date, the Medical Council advised that it had considered Dr Houfani's response to the Medicare data compliance review for the period 1 June 2020 to 15 August 2021. 2. The Council noted Dr Houfani's response (dated 29 April 2022, and before us as Ex R3), and found him: "…in breach of condition 3 of your registration by prescribing a Schedule 4 Appendix D drug on three occasions". 1. The Council's response went on to say: "While the committee has noted the breach in this instance, you are reminded that you must: • maintain strict compliance with the conditions on your registration and any instances of further non-compliance may result in Council taking further action, including urgent interim action; • Familiarise yourself and keep informed of changes to the current drugs listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW)." 1. The Tribunal received no late submissions from either party in respect of these Medical Council outcomes. Other Exhibits 1. Exhibit R1 contains extensive CPD records (tabs 4–21), and many glowing character and professional references (tabs 23–53). An additional reference is provided in Exhibit R2. 2. Dr Houfani is roundly praised for his extensive community and philanthropic activities, and for his compassionate conduct of what has been described as an "old fashioned, highly professional, family general practice". Submissions and Discussion 1. The HCCC acknowledges that this Tribunal must not simply adopt and rely upon the Respondent's admissions in reply to the complaints, but must be satisfied, at Stage 1 of the Tribunal process, that the subject matter of the Complaint is proven to the requisite standard. 2. In its submissions, the HCCC took us in detail to the relevant material – the relevant Code of Conduct, Departmental and RACGP/AMA Guidelines, medical and Medicare records for each patient, some of whom were especially complex, and the expert opinions expressed by Dr Levy, and not challenged by Dr Houfani. 3. Dr Houfani's counsel reaffirmed the Respondent's broad admissions, and focussed particular attention on Stage 2 considerations. 4. We are comfortably satisfied in the Briginshaw sense (Briginshaw v Briginshaw (1938) 60 CLR 336) that all the HCCC complaints and particulars have been made out. 5. We accept its submissions on Stage 1 in their entirety: These were not isolated incidents, they occurred over a worryingly long period, they concerned vulnerable people needing thorough assessment and care, and Dr Houfani's training and experience over 30 years are such that his failures in each case should be adjudged as "professional misconduct" in the statutory sense (s 139E of the National Law). 6. One particularly worrying aspect of the evidence before us concerns Dr Houfani's attention, or lack of it, to the requirement for him to obtain an authority to prescribe to a drug dependent person. 7. Questions "pop up" when the relevant application is submitted electronically, and it is clear, as Ms Bayley submitted orally (transcript, p 5), that Dr Houfani: "just put what he thought he needed to put in order to continue to prescribe, [and] … the public needs to be protected from practitioners who are ignorant of basic rules or indifferent as to rudimentary professional requirements… [A] doctor must act in the best interests of a patient. The patient's perceptions of their needs and wants can never be a determinative consideration. A detached, informed, professional judgment must always be brought to the decision to treat and the decision to prescribe". 1. Dr Houfani's attitude to the requirements of that authority procedure was certainly cavalier. 2. After observing him giving his evidence to this Tribunal, we remain unconvinced that, at least as yet, he is capable of that "detachment" and objectivity in dealing with, and making critical assessments of, his patients, of whom he is "overly trusting" (p 6), and slow to change when he begins to doubt them. 3. Likewise, despite the balanced approach of Dr Cowap in his audit, and Dr Levy in his expert evidence, Dr Houfani seems to understate their criticisms of him, so betraying inadequate insight on his part. 4. It was argued for Dr Houfani, and conceded by Ms Bayley for the HCCC, that he provides a valuable service to vulnerable members of the Lakemba community, but Ms Bayley points out (transcript, p 30): "… It is important that medical practitioners who provide services to vulnerable members of the community provide proper assessments, safe prescribing and appropriate records". 1. As the Tribunal said in Health Care Complaints Commission v Chen [2016] NSWCATOD 144, at [137]: "Medical practitioners are in a unique position in enabling members of the public to have access to drugs of addiction and the community is entitled to rely on the integrity and professional expertise of medical practitioners to avoid creating drug addicts and to avoid feeding the habits of drug addicts. This is not necessarily an easy task, but there are well-recognised protocols for the administration of drugs of addiction and well-recognised resources to assist medical practitioners in treating their patients…". Dr Houfani, like Dr Chen, "clearly failed" in these matters. 1. As s 3A of the National Law notes, our "paramount" consideration must be the "protection of the health and safety of the public", not merely the patients of the doctor being reviewed or denounced. 2. We accept Dr Houfani's frank and repeated admissions, and cooperation with authorities, as well as his experience, aptitude, tenacity, and preparedness to study – he has done more CPD than was required of him – and to reach out for support and assist others (e.g., his Medical Advisory Committee work). 3. He is certainly a good citizen, and may very well be, as noted by his advocate in the s 150 proceedings (Ex A1, tab 5, p 67, l 18) "incredibly well-meaning", but his journey towards reform is not over yet. 4. We are not, however, satisfied that Dr Houfani ought to be suspended for a period as submitted by the HCCC. We believe that the Tribunal should administer a formal reprimand, and, beyond that, like the s 150 panel, impose conditions which, including supervision, should be sufficient. 5. As Dr Dwyer said in her oral submissions (transcript, p 27): "…This is a doctor who has overwhelmingly complied with stringent conditions that have been imposed, has fundamentally changed his practice, has not just abided by the conditions imposed by the s 150, but then has adopted their recommendations in relation to the QLD Cognitive Institute course and making sure he has got his own GP, and in addition to that gone above and beyond in terms of engaging Morrison Consultancy and doing all the extra work." 1. It is common ground that future supervision should be "category C", but we consider that some additional requirements should be imposed on that supervision. 2. It is also common ground that there should be not only drug prescribing restrictions, but also a limitation on patient numbers. 3. In this latter respect, we would impose a tighter restriction than counsel have suggested. 4. While the Medical Council was comfortable to lift its audit condition, neither counsel, faced with the letter of 24 June 2022, submitted that the audit condition in both drafts of the conditions before us should be removed (cf Respondent submission 4.19). 5. Accordingly, we will formally reprimand Dr Houfani, and impose stringent conditions on his continued registration. Costs 1. The HCCC also seeks (submissions, par 53) an order that the Respondent pay its costs of these proceedings. 2. As no disentitling conduct has been shown on the Commission's part, we agree that the usual costs order should be made in favour of the HCCC. Orders 1. The Tribunal, having found Dr Houfani guilty of professional misconduct, makes the following orders: Reprimand 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the Respondent. Practice Conditions 1. Under section 149A(1)(b) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the Respondent's registration: Change of Practice 1. To obtain Medical Council of NSW approval prior to changing the nature, scope or place of his practice. Patient Limit 1. Not to see more than 40 patients per day, including patients seen in residential aged care facilities or home visits. Schedule 8 drugs and Schedule 4D drugs 1. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). Audit 1. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: 1. The auditor is to assess his compliance with good medical record-keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to: 1. Quality of records 2. Patient Management 3. Prescribing 1. To authorise the auditor(s) to provide the Council with a report on their findings. 2. To meet all costs associated with the audit(s) and any subsequent reports. Supervision 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 and: 1. During the first six months of supervision, one supervision meeting per month is to be replaced by an observation session with the Council-approved Supervisor of at least one hour's duration. Observation sessions are to alternate between: 1. The Supervisor observing the practitioner conduct at least three patient consultations; 2. The practitioner observing the Supervisor conduct at least three patient consultations; 3. Details and feedback about the observation sessions are to be included in supervision reports. 1. At each supervision meeting, the Respondent is to review and discuss his practice with his approved Supervisor with a particular focus on: 1. Appropriate assessments and management 2. Appropriate prescribing 3. Medical records and documentation 4. Compliance with conditions 1. To authorise the Medical Council of NSW to provide proposed and approved Supervisors with a copy of this decision and any subsequent relevant reports or decisions. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. Information Exchange 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 2. To authorise the Medical Council of NSW to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. Costs of Compliance 1. To bear all costs arising out of compliance with these conditions. 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. Costs of the Tribunal Proceedings 1. The Respondent is ordered to pay the Applicant's costs of these proceedings, as agreed or assessed. ********** 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: 23 December 2022