Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Geoffrey Samuel AU [2023] NSWCATOD 14 Hearing dates: 18 - 19 August 2022 28 - 29 November 2022 Date of orders: 8 February 2023 Decision date: 08 February 2023 Jurisdiction: Occupational Division Before: The Hon A Ainslie-Wallace ADCJ, Principal Member Dr G Yeo, Senior Member Dr H Mukhtar, Senior Member J Houen, General Member Decision: (1) Pursuant to section 149C(l)(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. (2) The Respondent's registration is subject to the following practice conditions: (a) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. (b) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (c) Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). (d) To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time time) and as subsequently determined by the appropriate review body. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (A) Problem Definition/Diagnosis (B) Management/Advice/ Safety netting (C) Prescribing (D) Medical Records (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed these conditions (e) Not to practise until a supervisor has been approved by the Medical Council of NSW. (f) 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. (i) The Audit is to be held within 3 months from the date of decision and subsequently as required by the Council. (ii) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements. (iii) To authorise the auditor(s) to provide the Council with a report of their findings. (iv) The practitioner is responsible for any costs arising out of compliance with the audit and any subsequent audits and reports. (g) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. (3) 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. (4) 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 (5) The respondent is to pay the costs of the applicant, the Health Care Complaints Commission, as agreed or assessed. (6) The non-disclosure order made on 18 March 2022 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (NSW) prohibiting the disclosure of the name of the patient, referred to as Patient A in these reasons, is continued and the non-disclosure order made on 19 August 2022 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (NSW) prohibiting the disclosure of the name of the patient, referred in the material before the Tribunal as Patient B, is continued. Catchwords: PROFESSIONS AND TRADES – health care professionals – medical practitioners – disciplinary action –prescribing drugs of addiction to drug addicted person – Professional Misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation (NSW) 2016 Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1983) 60 CLR 336 Gautaum v HCCC [2021] NSWCA 85 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Pillai v Messiter (1989) 16 NSWLR 197 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Geoffrey Samuel Au (Respondent) Representation: Counsel: E Bayley (Applicant) C Coventry (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meriden Lawyers (Respondent) File Number(s): 2022/00061525 Publication restriction: Publication, broadcast or disclosure of the names or information identifying the patients referred to as "Patient A" or "Patient B" in the reasons or in the material before the Tribunal, is prohibited. REASONS FOR DECISION 1. By amended Complaint the Health Care Complaints Commission ("the Commission") complains that Dr Geoffrey Samuel Au ("the practitioner") is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The complaint concerns the practitioner's prescription of Type C drugs of addiction within the meaning of section 28(6) of the Poisons and Therapeutic Goods Act and the failure of the practitioner to keep proper medical records in accordance with the Health Practitioner Regulation (NSW) 2016 ("the 2016 Regulation"). The Commission further complains that the practitioner is guilty of professional misconduct pursuant to section 139E of the National Law. 2. The practitioner completed an MBBS at Sydney University in 1988 and was first registered to practice on 19 December 1988. In 1994, he became a Fellow of the Royal Australian College of General Practitioners and from 2001 practised as a general practitioner at Sydney Medical Centre ("the Centre") and was practising there at the times relevant to the complaint. 3. The complaints and the associated particulars concern the practitioner's treatment of one patient, Patient A, a man aged 55 who attended the Centre and was a patient of the practitioner in two distinct periods; from 26 August 2008 to 28 December 2010 during which time the patient consulted the practitioner on 30 occasions, and from 30 December 2016 until 22 October 2020 when 42 consultations are recorded. 4. During the periods when the patient consulted the practitioner, the practitioner prescribed large quantities of Type C drugs of addiction (within the meaning of s 28(6) of the Poisons and Therapeutic Goods Act) for the patient. 5. The patient first attended the practitioner on 26 August 2008 and on that day the practitioner prescribed 20 tablets of 80mg Oxycontin. It was conceded that 80mg of Oxycontin is the largest dose available. Thereafter the patient frequently returned for further prescriptions, often within a very short time of the earlier prescribing. The practitioner's notes show that from time to time that he advised the patient not to return for another prescription before a particular date and nearly always the patient returned before that date seeking Oxycontin which the practitioner prescribed. 6. In the second period during which the patient returned to the practice, the practitioner recommenced prescribing oxycodone as before. The practitioner added prescriptions for Actiq 60 x 1600mcg lozenges and lithium (4 January 2017); Endep 50mg (9 January 2017); Fentora 800mcg (13 October 2017); Ativan (8 December 2017) and Dilaudid 8mg (17 August 2018). 7. Actiq and Fentora contain fentanyl, Dilaudid contains hydromorphone and Oxycontin contains oxycodone. Endep is used to treat mood disorders and contains amitriptyline and is used to reduce mania in people suffering from bi-polar disorder. 8. On a number of occasions the practitioner referred the patient to a pain clinic for specialist assessment. The patient never attended although the practitioner's notes contain many references to the patient's excuses as to why he could not attend. 9. At no time did the practitioner have the relevant authority to prescribe those drugs. 10. While not all of these drugs were prescribed for the patient at the same time, there was no dispute that the practitioner prescribed two different opioids together for the patient, and at the same time prescribed benzodiazepines. Nor was there ultimately any dispute that the practitioner prescribed lithium, sodium valproate and amitriptyline with no proper therapeutic purpose. 11. Between the two periods in which the patient consulted the practitioner that is between 18 February 2011 and 30 December 2016, 325 private prescriptions for a variety of Schedule 8 and Schedule 4D drugs were presented to a pharmacy in Maroubra, in addition, during the same period, 8 prescriptions for Schedule 4D medication were dispensed to the patient. In respect of all of these prescriptions, the practitioner is noted as the prescriber. 12. It was accepted that the practitioner did not write those prescriptions. The practitioner said that on 28 December 2010 he saw the patient walk into the empty consulting room of another doctor at the practice and confronted the patient who gave some excuse for being in the doctor's room. Although the practitioner said he regarded this behaviour as unusual, he did not think any more of it. On 24 January 2011, the practitioner was contacted by a pharmacist to clarify whether he was the prescriber of a number of prescriptions presented by the patient. The practitioner said it was not his signature on the prescriptions and that he had not been the prescriber. 13. The practitioner believed the prescriptions to have been forged with his signature but did not notify the police, the PRU, or seek copies of the forged prescriptions. He did not discuss the forged prescriptions with the patient when he returned to the practice in 2016. It later became apparent that many more fraudulent prescriptions were presented by the patient than had been notified to the practitioner in January 2011. It was admitted that had the Pharmaceutical Regulatory Unit been notified in January 2011 it could have alerted pharmacies to the circulation of the forged prescriptions and stop further dispensing. 14. In respect of both periods in which the patient attended on the practitioner he displayed many of the "red flags" associated with drug seeking behaviour. The practitioner agreed that he failed to respond adequately to those red flags and continued to prescribe opioids and benzodiazepines for the patient concurrently and prescribed in excessive quantities. During the second period in which the patient was seeing the practitioner, the practitioner wrote 482 private prescriptions for the same drugs as those prescribed on the Pharmaceutical Benefits Scheme ("the PBS"). 15. On three occasions the practitioner received a report that the patient was "doctor shopping", that is, obtaining the same drugs from other practitioners. The practitioner did not contact any of the other prescribing doctors. The practitioner made no change to his prescribing for the patient although after receiving the first report, the practitioner "put the patient on probation for three months". The practitioner said that the patient agreed not to see any other general practitioners seeking drugs. The two subsequent reports make it plain that notwithstanding the apparent agreement between the patient and the practitioner, the patient continued to seek drugs from other practitioners. 16. The practitioner's notes make frequent reference to the patient's overseas travel often proffered as a reason for seeking multiple prescriptions and for the drugs prescribed to be dispensed in large amounts. While occasionally the notes indicate that the patient provided the practitioner with his air ticket, the practitioner agreed that he was never shown a ticket but was shown on one occasion an itinerary and on another a booking for air travel. It was undisputed that at no time did the patient travel overseas. 17. The practitioner agreed that there were obvious inconsistencies in the patient's assertions of being overseas working which ought to have thrown doubt on whether he was in fact overseas. For example, on 26 July 2019 the practitioner received a phone call from a pharmacist at a pharmacy where the patient had prescribed drugs dispensed. The practitioner's note reads: "… stated to me that he has been attending her pharmacy weekly [despite him stating that he is going to usa] she overheard conversations with his daughter discussing his medications which has raised her suspicions of diversion. She has attempted to control restrict the release of his mads [aplrax (sic) 50 tabs a week, actiq, 90 a week] she suggested prescribing less with a repeat interval written. 1. Two days later, 1 November 2019, the patient attended the practice and the practitioner prescribed two types of oxycodone. 2. On 27 December 2019, Dr Catherine Silsbury, an addiction specialist working at the Centre for Addiction Medicine at Cumberland Hospital, made a complaint that on 24 December 2019 a patient whom she was supervising on the Methadone program was in the waiting room apparently heavily sedated and was seen taking tablets from a bottle in his bag. The tablets were hydromorphone (Oxycontin) and of the 20 tablets prescribed, only three remained. The tablets had been prescribed on 20 December 2019 by the practitioner. The patient, Patient A, told her that he had been receiving prescriptions for "liberal quantities" of opioids from the practitioner over a period that the patient estimated was about 15 years. Dr Silsbury rang the practitioner and expressed her concerns. 3. On 3 February 2020, a hearing pursuant to s 150 of the National Law was held and on 7 February the matter was referred to the Commission for investigation. At the conclusion of the s 150 hearing the practitioner was ordered not to possess, supply, administer or prescribe any Schedule 8 drug or Schedule 4D drug as defined by the Poisons and Therapeutic Goods Act 1966 and Regulation 2008 respectively. He was also ordered to undertake category B supervision. 4. The Commission brought the complaint to the Tribunal. 5. Ultimately the practitioner admitted most of the particulars of each complaint and we will shortly identify those which were disputed. However, even though the majority of the particulars to the complaints were conceded, it is necessary when considering the complaints to set out in some detail the facts and circumstances of the practitioner's conduct to give context to both those particulars which are denied and to our ultimate decision. 6. The onus of proving the complaints rests on the Commission and the relevant standard of proof is in accordance with the principles set out in Briginshaw v Briginshaw (1983) 60 CLR 336. (see too Gautaum v HCCC [2021] NSWCA 85) The complaints Complaint 1 1. Complaint 1 contends that the practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or (l) of the National Law in that he has: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The complaint is supported by 9 particulars. Particular 1 1. The Commission complains in respect of the period 26 August 2008 and 28 December 2010 the practitioner prescribed fentanyl, oxycodone and alprazolam for the patient in circumstances where the practitioner: a. he failed to conduct a proper assessment of Patient A prior to issuing the prescriptions; b. he failed to make timely referrals for specialist assistance; c. he failed to respond appropriately to Patient A's failure to attend for specialist review; d. the prescriptions were not issued for a therapeutic purpose; e. the amount of each drug prescribed was excessive; f. more than one opioid was inappropriately prescribed concurrently to Patient A; g. opioids were inappropriately prescribed concurrently with a benzodiazepine; h. he failed to respond appropriately to drug seeking behaviours from Patient A; and i. he issued multiple private scripts to Patient A. 1. But for particulars (a) and (d), the practitioner admitted the conduct particularised. 1 (a): Failed to conduct a proper assessment before issuing prescriptions for fentanyl, oxycodone and alprazolam 1. Dr Delma Mullins is an experienced General Practitioner and she was asked by the Commission to prepare an expert report in relation to the complaints about the practitioner. When addressing the question of the accepted therapeutic standards of dosage and duration of prescribing the drugs prescribed by the practitioner, she said that the practitioner's assessment of Patient A prior to first prescribing on 26 August 2008 was inadequate and said that there was inadequate assessment of the patient before the commencement of all of the medications to which this particular referred. She was asked to comment on what would have constituted an appropriate assessment in the circumstances. She said: Comprehensive assessment of the patient should occur before the first prescription is written. Assessing patients with chronic pain and anxiety includes a full medical history and detained examination according to a biopsychosocial approach and applying "universal precautions" to make a misuse risk assessment. This is particularly important with a patient is new to the practice requesting opioids. There was no adequate, history, examination or management plan … Opioid prescribing requires comprehensive biopsychosocial assessment of the patient, diagnosis and consideration of risks and benefits with the use of opiates, before the first prescription is written for pain management. There needs to be thorough assessment to determine that pain is experienced, and that opiates are the most appropriate. This includes history of any trauma or injury, patient's 'pain experience', triggers; Physical assessment - examination and including determining impact on lifestyle, mobility, work. The use of a "brief pain inventory" and opioid risk tool is safe practice. I note Dr Au has documented "cubital fossa clean" on more than once occasion, yet not used the "opioid risk tool". Psychological factors need to be considered including mental state, and social stresses including impact on relationships, sleep, ability to function. Therapies used to date, including medications both prescribed and over the counter preparations, physical therapies and other treatments such as acupuncture – and effects of these. Goal of the treatment, & a limited trial of use of opiates is best agreed upon with the patient if it is decided to be in patient's best interest to use these pain medications. This treatment plan must be documented in the patient's file. ….. Regular review - including - analgesia achieved, any adverse effects, aberrant behaviour, physical activity, affect. This must be recorded accurately in the patient's file. 1. The Commission relies by way of example on several consultations between the practitioner and the patient to demonstrate the practitioner's want of appropriate assessment before prescribing. 2. The first consultation was on 26 August 2008, the first time that the patient saw the practitioner. The practitioner's note is: Lives permanently in oz – served in IRAQ, requests Oxycontin, has 2006 papers cubital fossa clean – has military tattoos, bullet wounds. 1. The practitioner prescribed 20 Oxycontin tablets 80mg. 2. The Commission argued that the practitioner failed to conduct a proper assessment because there is no note of medical history, no record of reported symptoms, no details concerning the nature, onset, location, duration and severity of any pain. No findings were recorded of examination, no information recorded about the patient's previous or current medication and no discussion about any potential side effects. 3. Next, the Commission refers to the consultation notes of 31 July 2009, which is when the practitioner first issued a private prescription for Actiq (fentanyl). The practitioner's note for that consultation is: Started exercising – hobbling in pain right buttock groin constant electric spasms melodramatic animated confident as usual 1. While accepting that the note records the patient's complaints of pain, it does not reveal any examination findings, nor does it note about the nature, onset, duration or severity of the pain nor any reason for the prescription of fentanyl. 2. On 21 December 2009, the practitioner added alprazolam by issuing a private prescription for 50 tablets of alprazolam 2mg (Xanax). The practitioner's note records: Gets emotional teary during divorce, Valium made him dopey. Breakdowns in tears. 15 years marriage, first break up at 7 years, sleeps 2 to 4 hours a night. Tense on edge. Nil thoughts of self harm. Going for a 3 week period of travel Melbourne perth and various rural area by car, departs 27/12/09. Pt understands the possible addiction to this drug. 1. Again, the Commission points to the lack of a note about the nature, onset duration or severity of the patient's anxiety, no examination finding and no discussion about the possible side effects of the drug other than possible addiction. 2. For the practitioner it was argued that while on some occasions he did not carry out a proper assessment of the patient prior to issuing a prescription, this could not be said of every consultation to which the Commission referred. 3. Counsel for the practitioner took refuge in the practitioner's admittedly poor note taking and argued that while the note is deficient, the assessment was not. 4. In his evidence about the consultation on 26 August 2008, the practitioner said that he "may" have asked the patient about what previous medication he had used and he "could have" asked him about previous general practitioners and if he had mentioned other doctors he would have asked for their records. The practitioner said he conducted a physical examination and "thought" that he identified a site of pain but did not write it in his notes. 5. Counsel for the practitioner pointed to the notes as a whole and argued that there were references to "some physical examinations" and some indications that the practitioner enquired about the patient's pain and response to medication and the practitioner being alive to signs of dependency. 6. True it is that in a number of consultation notes, the patient's complaints of pain are recorded, although we are not confident that those complaints were elicited by questions asked by the practitioner as was submitted by counsel nor do we necessarily accept that the practitioner's note on 31July 2009 of "melodramatic animated confident as usual" refers to the practitioner checking for signs of intoxication. We are supported in this view by the practitioner's evidence to the s 150 hearing that the patient spoke quickly and was assertive and confident and the practitioner found himself somewhat overborne by the patient. The practitioner said of this patient: … he was incredibly charismatic and talkative. So he starts talking the minute he comes in the door and he's very intelligent and very persuasive and this is how he is. He sort of distracts you … (practitioner's evidence s150 hearing 3 February 2020 page 21) 1. However, in our view little turns on this point. Adopting the most benevolent view of the whole of the practitioner's notes for this period and accepting that the snippets here and there to which the practitioner's counsel pointed as reflecting an examination or investigation, they fall far short of the benchmark to which Dr Mullins referred in her report to the Commission. 2. We find matter made out. 1(d): The prescriptions for oxycodone, fentanyl and alprazolam were not issued for a therapeutic purpose 1. The Commission argued that none of the identified prescriptions was issued for a therapeutic purpose because the practitioner's notes show no or limited reason for their prescription and the frequency at which the prescriptions were written. Secondly the Commission argued that the practitioner himself said that he prescribed the drugs because the patient asked for them and thirdly the Commission relied on Dr Mullins' opinion that while the practitioner noted that the patient had "pain" it was not a diagnosis which could justify the prescription of the doses of the drugs and the frequency at which the prescriptions were written. 2. Dr Mullins did not agree that the prescription of these drugs was supported by a therapeutic need. 3. Dr Mullins said on review of the practitioner's files: Hydromorphone and fentanyl particularly are generally used for palliative care, with patients at the terminal phase of their illness. These were prescribed together with no therapeutic need detailed in the medical file. There was no record of details of any monitoring or assessment of analgesia, adverse effects, aberrant behaviour, activity affect. No management plan or limited therapeutic treatment. 1. While there was a dispute about whether there was a place for the opioids in non-palliative treatment, in our view that is somewhat beside the point. Dr Mullins in her oral evidence accepted that in 2009 there was thought to be a role for opioids other than in palliative care however she said that her role was to consider this patient and this practitioner's treatment and in her opinion the prescriptions were not therapeutically appropriate. 2. Dr Mullins said that she had reviewed each of the identified prescriptions written by the practitioner and was unable to identify a therapeutic purpose in circumstances where the practitioner's diagnosis was "pain". 3. Dr Mullins said that she found no evidence in the medical records of assessment or of review of the effect of previous treatment or other ongoing assessment. She referred by way of example to the practitioner's note of a consultation on 2 September 2008 in which he prescribed 20 tablets of 80mg Oxycontin, followed seven days later by a further prescription of 20 tablets of 80mg oxycontin plus an addition prescription of 20 tablets of 40mg Oxycontin. 4. She said, while observing the note said "stabbing low thoracic pain", that there is no notation of an actual examination nor any reason for the increase in the dose. 5. Dr Mullins opined that before issuing any prescription for benzodiazepine there needed to be a comprehensive medical assessment of the patient, diagnosis and continuous monitoring. She said the drug was appropriate for: Short term use for anxiety, if severe of treatment resistance and sleep disorders is a common clinical indication, after thorough assessment. They are not first line medications. CBT and antidepressants are first line. Page 8 … Prescription of benzodiazepines for a period greater than 4 weeks is considered long term and should be avoided. 1. She said that over many consultations the practitioner did not record "monitoring or review or true therapeutic indication for the medications, changes in doses or addition of extra preparations." 2. The practitioner contended that the prescription of these drugs was therapeutically appropriate to address the patient's chronic pain which he regarded as genuine, pending the patient attending on a pain specialist. 3. The patient told the practitioner that he had attempted many treatment options for dealing with his cervical or lumbar pain. The practitioner saw no document to support the patient's account nor did he seek reports from the patient's treating doctors in America, but accepted the patient's account. 4. On his acceptance of the patient's account of previous treatment and prescriptions, the practitioner prescribed large doses of opioids for the patient and maintained their prescription was for a proper therapeutic purpose albeit he conceded that the periods over which he prescribed fentanyl and oxycodone were excessive. 5. As to the prescription of the benzodiazepine, the practitioner maintained it was to address the patient's anxiety, and counsel for the practitioner pointed to various parts of the notes in which the practitioner has recorded that the patient was "teary" or "tense". The practitioner continued to prescribe this drug for the patient for a period of 12 months, only ceasing to prescribe when the patient left the practice in December 2010. 6. While the practitioner maintained that the prescription of this drug was therapeutically appropriate to treat the patient's anxiety, the practitioner conceded that it should not have been prescribed for such a lengthy period nor did the practitioner have "true confirmation" at all times of the therapeutic need for it. 7. We accept the expert opinion that the prescription of the identified drugs for this patient was not for therapeutic purposes and the practitioner's limited assessment that the patient was in pain, even genuine pain, in these circumstances where a comprehensive assessment is lacking does not demonstrate a therapeutic need nor did the notation of "anxiety" provide a therapeutic basis for the prescription of benzodiazepines. 8. On a number of occasions, the practitioner himself said that he prescribed drugs for this patient because he asked for them. In fact, the first time the practitioner saw the patient, his note says "requests oxycontin" which was prescribed. 9. The practitioner said that on being requested to prescribe the oxycontin, he considered the patient's request "reasonable" and thus prescribed what was sought. This evidence sits uncomfortably with his concession that he would not prescribe opioids as a first line of treatment. 10. In July 2009 the practitioner prescribed Actiq at the patient's request. This was a drug that the practitioner had not prescribed before nor did he know that it contained fentanyl and thus could not and did not consider the opioid equivalent of Actiq with the oxycodone already prescribed. 11. When questioned about a period of less than 14 days in December 2009 in which the patient was prescribed 20 Oxycontin tablets (80mg) by a colleague on 10 December; 20 Oxycontin tablets (80mg) on 14 December and a further 40 Oxycontin tablets (80mg) on 21 December, the practitioner said that the patient was "self managing" and said he "knows his own body and knows how much to take." We note too that despite the practitioner's note of 14 December 2009 was "not to return till after Xmas", the patient returned 7 days later and the practitioner prescribed oxycodone for him. 12. In submissions for the practitioner it was argued that the patient's request was not the "sole" reason that the practitioner provided the drugs sought. The practitioner's notes and his evidence to which we have referred provide powerful evidence to the contrary and reinforce our acceptance of the Commission's argument that the drugs were not prescribed for a therapeutic purpose. 13. We are thus comfortably satisfied that the Commission has established this particular to the complaint. Particular 2 1. Further the Commission complains that between 26 August 2008 and 28 December 2010, the practitioner prescribed oxycodone and fentanyl being Type C drugs of addition in circumstances where: 1. oxycodone and fentanyl were at all material times Type C drugs of addiction within the meaning of section 28(6) of the Poisons and Therapeutic Goods Act ("the PTG Act'); 2. the practitioner ought reasonably to have formed the opinion that Patient A was a drug dependent person (within the meaning of section 27 of the PTG Act); and 3. the practitioner did not have the proper authority to prescribe under section 28(3) of the PTG Act. 1. This particular was admitted. 2. At no time did the practitioner have nor did he seek the relevant authority to prescribe the nominated drugs for the patient. The practitioner said that he believed authority would only be granted if sought by a pain specialist. When taken to the authority form, he agreed that nothing in that document supported his belief and agreed that the form provides for a general practitioner to request authority. The practitioner said he "had a hunch that it would be rejected" if he applied and agreed that despite there being a telephone number on the form for enquiries, he had made none. 3. The practitioner's notes record on 14 April 2009 "… understands the max prescribing is 2 months twice a year" and the practitioner agreed he knew that he could prescribed drugs of addiction for two months without authority, but thought then, that if there was a gap of time in which he did not prescribe, he could resume prescribing. 4. This evidence has to be seen against the background of the practitioner's having access to a wealth of information directly related to the need for authority to prescribe including a one-day methadone course undertaken by him in 2000 which covered how to apply for an authority to prescribe. 5. The practitioner's evidence that only a pain specialist could apply for authority to prescribe, when viewed against his own evidence and the evidence as a whole is difficult to accept. 6. While we are conscious that the practitioner has admitted all of the details of this particular, his evidence to the Tribunal was that he did not believe he could have applied for an authority reveals at best an ignorance of his fundamental responsibilities as a prescriber and is a matter which is necessary to consider when we come to our eventual decision. 7. Dr Mullins said, and it is obviously correct, that it is the responsibility of the practitioner to be aware of the regulations in relation to drug prescription including obtaining authority. She saw nothing in the notes which justified the practitioner continuing to prescribe these drugs without authority and said it fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited her strong criticism. 8. As to whether the practitioner ought reasonably to have formed the opinion that the patient was a drug dependent person, the practitioner agreed that at the time he first saw the patient he was aware of the signs of a drug dependent person and agreed that almost from his first consultation with the patient there were "red flags" indicating he was drug dependent. There was abundant evidence on which the practitioner ought reasonably to have formed that opinion 9. This particular is proved. Particular 3 1. In relation to the dates 26 August 2008 and 28 December 2010, the Commission contends that the practitioner made inadequate records for Patient A in that there was insufficient information for another practitioner to effectively assume management of Patient A's care. 2. This particular was admitted and the practitioner's notes are patently inadequate. 3. Dr Mullins' in her report sets out the standard expected of adequate and appropriate record keeping (page 10-11). She said that the practitioner's notes were significantly inadequate and not compliant with the relevant regulations and were such that it would be very difficult for another practitioner to take over the management of the patient. She said that notes of "diagnosis, management plan and review and advice given are significantly lacking in the records…". 4. This particular is established. Particular 4 1. On 24 January 2011 the practitioner was notified by a pharmacy that the patient had on 5 and 22 January 2011 presented prescriptions in the practitioner's name which had been falsified. While the Commission accepted that the practitioner did not write these prescriptions, it contends that the practitioner failed to respond appropriately to the notification from a pharmacist in that he: a. failed to request that copies of the prescriptions be sent to him; b. failed to notify NSW Police; c. failed to place a warning in Patient A's medical records to alert other practitioners; and d. failed to discuss the prescriptions with Patient A when Patient A next consulted with him on 30 December 2016 or thereafter. 1. This particular was admitted 2. On 28 December 2010 the patient consulted the practitioner and was prescribed 40 tablets of Oxycontin 80mg. The practitioner's note relevantly said, written in capital letters: Was seen walking into Dr Richmonds room after my consultation and when asked what he was doing stated he was looking for the hats he gave me. 1. The practitioner said that he told the patient he was not allowed in the other consulting room but saw nothing in his hand and had no proof that he had stolen anything. He did not inform Dr Richmond. 2. In relation to the call from the pharmacy on 24 January 2011 the practitioner noted: Call from [a pharmacy] …scripts signed by dr au on 5/1/2010 and 22/1/20 – faked! Presumed stole scripts from dr richmonds room on 28/12/2010 1. The practitioner said he told the pharmacist that he had not written the prescriptions because he looked at the prescriptions and said it was not his signature. 2. The practitioner said that he was worried although he did not speak to Dr Richmond about it. He said he did not know what was prescribed, and did not know how many prescription forms the patient had stolen. 3. The practitioner thereafter took no step to notify the police or the Pharmaceutical Regulatory Unit, request copies of the scripts or place a warning note on the patient's file to inform other practitioners. 4. Dr Mullins considered the practitioner's response to be significantly below the appropriate standard and said he ought to have notified the police and the PRU and said that when it was later revealed that many more prescriptions apart from those of which the pharmacy notified the practitioner had been written, illustrates the danger of not notifying the authorities who, had they been notified could have alerted pharmacies to the potential of false prescriptions. 5. The patient did not attend the practice from 28 December 2010 until 30 December 2016. The practitioner did not discuss the stolen prescriptions nor the forged signature on those prescriptions with the patient when he returned to the practice in December 2016. 6. Turning then to the second period in which the patient consulted the practitioner, that is between 30 December 2016 and 2 December 2019, the Commission particularises the complaint: Particular 5: 1. That the practitioner prescribed oxycodone, fentanyl, alprazolam and hydromorphone hydrochloride to Patient A in circumstances where: 1. he failed to obtain Patient A's medical history for the period since Patient A's last consultation with him on 28 December 2010; 2. he failed to conduct a proper assessment of Patient A prior to issuing the prescriptions; 3. he failed to make timely referrals for specialist assistance; 4. he failed to respond appropriately to Patient A's failure to attend for 5. specialist review. 6. the prescriptions were not issued for a proper therapeutic purpose; 7. the amount of each drug prescribed was excessive; 8. more than one opioid was inappropriately prescribed concurrently to Patient A; 9. opioids were inappropriately prescribed concurrently with benzodiazepines, namely alprazolam and lorazepam; 10. he failed to respond appropriately to drug seeking behaviours from Patient A; and 11. he issued multiple private scripts to Patient A. 1. All but sub-particulars (a), (b) and (e) were admitted by the practitioner. 5(a) Failure to obtain Patient A's medical history for the period since Patient A's last consultation with him on 28 December 2010 1. The practitioner said when the patient returned to his practice on 30 December 2016 he assumed that he had been away overseas, probably he said, because the patient told him. His note of this consultation refers to the patient having been in the USA and having recently fallen downstairs hurting his ribs. He noted: "infrequent pain these days, off xanax any more infrequent sciatic nerves left buttock, lbp" 2. The practitioner agreed that he made no note of any physical examination of the patient's ribs although he said he did conduct an examination. He prescribed Oxycontin 80mg. 3. For the practitioner it was submitted that the notes reveal that the practitioner took a history of the immediate presenting problem, the injured ribs, but conceded that the history obtained was inadequate in that the practitioner did not seek medical records for the period in which the patient had not attended the practice, did not check with the Dr Shopping program or ask the patient whether he was seeing any other doctors nevertheless some history was taken. It was argued that therefore it could not be said that the practitioner had "failed to obtain a history". 4. We disagree, the particular contends that the practitioner did not obtain a history from the patient since his last consultation nearly six years before and there is no evidence that the practitioner made any enquiry about that period. That he noted why the patient appeared on that occasion is not apposite to the complaint and we find this aspect of the particular made out. 5(b) Failure to conduct a proper assessment before issuing prescriptions 1. For the practitioner it was argued that the Commission was unable to demonstrate that on each consultation with the patient the practitioner failed to conduct a proper assessment of the patient before issuing prescriptions and argued that the practitioner's evidence was that he conducted a physical examination "at times" to establish whether the patient had genuine pain albeit not recorded in the notes. 2. The Tribunal was urged to consider the practitioner's evidence to the s 150 panel when the practitioner said he did conduct an examination of the patient on 30 December 2016 but made no note of it and was asked to accept that by this we should find that the practitioner made a proper assessment of the patient before resuming prescribing high doses of opioids. 3. However, at the s150 hearing the practitioner was asked whether, when the patient returned, he reviewed the patient's need for opioids. The practitioner referred the s 150 Panel to a CAT scan performed on the patient in 2009 but agreed he did not revisit that. The practitioner said that in hindsight he would have asked the patient "why do you need to take the medications" which we consider to be tolerably clear evidence that when the patient returned to the practitioner's care, he did not conduct a review and assessment of his continuing need for high dose opioids. 4. Dr Mullins' opinion was sought as to whether the practitioner made a proper assessment of the patient confirmed her earlier opinion that a review of all of the practitioner's notes demonstrate that he "consistently over many consultations does not record monitoring or review or true therapeutic indication for the medications, change in doses or addition of extra preparations." Dr Mullins' opinion did not change in that regard. 5. We are unable to conclude that, notwithstanding the concession that the practitioner's note taking was inadequate, he nonetheless conducted a "proper assessment" of the patient each time before prescribing. First, the notes are devoid of detail of the assessment which Dr Mullins said would be "proper" before prescribing or adding medication and secondly, the practitioner's evidence fell far short of persuading the Tribunal that before prescribing these drugs he conducted the type of assessment to which Dr Mullins referred. 6. We further accept the submission of the Commission that the fact that having received three positive reports that the patient was "prescription shopping" the practitioner continued to prescribe as he had before, speaks strongly to establishing that he did not conduct a proper assessment of the patient before issuing the identified prescriptions. 7. We find this sub-particular made out. 5(e) the prescriptions were not issued for a proper therapeutic purpose 1. While it was conceded by the practitioner that his prescription of alprazolam was without therapeutic purpose, it was argued that the prescriptions of oxycodone, fentanyl and hydromorphone hydrochloride were for therapeutic purpose to address what he regarded as the patient's genuine pain. 2. We do not agree. 3. When the patient returned the practitioner said he examined him to see whether he had genuine pain although as we have said, there is no evidence of any note to that effect. In the s 150 hearing, the practitioner when asked about a review of the patient when he returned to determine whether he still needed the opioids said: page 58 In the initial three years there was evidence for organic causation of the pain at the beginning you know. He did have bullet marks on his legs… 1. He was asked what examination he would do now on reflection and he said: … would do the history, examine his whole body range of motion… 1. This evidence seems to suggest that the practitioner did not review or revisit the patient's need for high dose opioids on his return but resumed the previous prescribing. 2. The practitioner's notes covering this second period demonstrate that on many occasions, a drug was added to the patient's armoury because the patient sought it. 3. This evidence and Dr Mullins' opinion persuades us that that no proper therapeutic purpose supported the prescription of the identified drugs. 4. Thus particular 5 is made out. Particular 6 1. In relation to this, the Commission contended that: Between 30 December 2016 and 2 December 2019, on the dates and in the quantities shown in Schedule 3 to the Complaint, the practitioner prescribed oxycodone, fentanyl, alprazolam and hydromorphone hydrochloride to Patient A in circumstances where: a. the drugs prescribed were at all material times Type C drugs of addiction within the meaning of section 28(6) of the PTG Act; b. the practitioner ought reasonably to have formed the opinion that Patient A was a drug dependent person (within the meaning of section 27 of the PTG Act); and c. the practitioner did not have the proper authority to prescribe under section 28(3) of the PTG Act. 1. This particular was admitted and we are satisfied that it is made out for the reasons we gave in relation to Particular 1. Particular 7 1. This particular was withdrawn Particular 8 1. This particular relates to prescriptions written by the practitioner in January 2017 and it is contended: On 4 January 2017, the practitioner prescribed lithium and sodium valproate to Patient A in circumstances where: a. Patient A requested that he be prescribed both drugs; b. the practitioner failed to conduct a proper assessment of Patient A; and c. the prescriptions were not issued for a proper therapeutic purpose. 1. The particular was admitted. 2. As to the prescription of these drugs, the practitioner was asked at the s 150 hearing why he prescribed sodium valproate and he said: "I presume it was for [the patient's] neuropathic pain" page 45. In his evidence to the Tribunal he said he prescribed these two drugs because the patient asked for them and added that he did not know why the patient needed valproate and said that he knew nothing about the patient's complaints of neuropathic pain. He agreed that he would not prescribe it for pain but said it was "the trust thing", a phrase used often by the practitioner in his evidence which he agreed meant that he trusted the patient to tell him what he needed and he would prescribe it if he thought it was "ok" to prescribe it. He agreed that the patient nominated the dose he wanted and the practitioner wrote the prescription accordingly. 3. As to the prescription of lithium, the practitioner said that he had prescribed it before for a patient who was then under the supervision of a psychiatrist. As to prescribing it without the supervision of a psychiatrist, the practitioner said that he usually would not initiate that drug but said "why would he (the patient) ask for it if he didn't need it…". 4. Dr Mullins said that lithium is used in the treatment of mania and in some cases in chronic schizophrenia. It should not be prescribed without an accurate diagnosis and observed that there is no evidence that the patient suffered from relevant mental illness. The practitioner made no note of examination other than to check his cubital fossa. Further she said that the patient's blood test results did not support the patient taking the lithium. 5. Sodium valproate is used in the treatment of epilepsy and can be used to treat pain. She noted that there was no therapeutic indication in the file for its prescription. These two drugs when used in combination carry a risk of drug toxicity. There is no note of the patient's mental state recorded in circumstances where sodium valproate carries an increased risk of suicidal thoughts or conduct. 6. This particular is made out. Particular 9 1. This too concerns prescriptions written by the practitioner in January 2017 and the Commission contends: On 9 January 2017, the practitioner prescribed amitriptyline to Patient A after Patient A informed the practitioner that he had lost his script for amitriptyline, in circumstances where: a. he failed to obtain independent evidence of the lost prescription; b. he failed to conduct a proper assessment of Patient A; and c. the prescription was not issued for a proper therapeutic purpose. 1. This particular was admitted 2. The practitioner agreed that he had prescribed this drug for the patient at the patient's request. He said to the s 150 panel when asked how he came to write this prescription page 47: ?…the back story is that he would be seeing other doctors and they've prescribed before and he just wants a script for it. He knows how to take it and he takes it now and again. He knows – this is all the back story – and, "can you just write me a script? I've had it many times, …" 1. The practitioner agreed that he had no records of the patient's treatment in America although said he "would have" asked him but agreed the request was not in the notes. 2. Dr Mullins said that there is no therapeutic indication for the prescribing of amitriptyline in the records. She said that the interaction between amitriptyline and narcotics is considered to pose a risk of moderate severity and is to be used with caution. She was critical of the practitioner's evidence that he took no steps to verify that the patient had been prescribed the drugs in America. 3. On 9 January 2017 the patient attended the practitioner and asked for a prescription of Endep saying that the pharmacist had lost the prescription. There is no note of any further enquiry of the patient about where the pharmacy was, who was the pharmacist etc, but the drug was prescribed by the patient. 4. This particular is made out and it follows that we find Complaint 1 established. Complaint 2 1. Here the Commission asserts that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened a provision of the 2016 Regulation in that between 30 December 2016 and 2 December 2019 the practitioner contravened clause 6(1) and subclause 3(2) of Schedule 4 of the 2016 Regulation in respect of his medical records in that he failed to record sufficient information to allow another practitioner to continue management of Patient A's case. 2. This complaint was admitted as were the particulars and it follows from our earlier findings that the practitioner's record keeping significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 3. This complaint is therefore established. Complaint 3 1. The Commission contends that the practitioner is guilty of professional misconduct under section 139E of the National Law in that he: i engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or ii engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. In support of this complaint, the Commission relies on the other complaints and the associated particulars both individually and cumulatively. Discussion 1. The objects and guiding principles of the National Law are to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in competent and ethical manner are registered. (s 3(2)) 2. When considering what, if any restriction should be placed on a practitioner's registration, the National Law notes that restrictions are to be imposed only if it is necessary to ensure health services are provided safely and are of appropriate quality. (s 3(c)) 3. Section 3A provides that the protection of the health and safety of the public must be the paramount consideration in the exercise of the functions under a provision of the National Law. 4. The Commission contends that not only does the practitioner's conduct amount to unsatisfactory professional conduct but the individual complaints both individually and cumulatively amount to professional misconduct. 5. Unprofessional conduct is defined by s 139B(1) of the National Law as: 1. Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of an equivalent level of training or experience …. 1. (l) Any other improper or unethical conduct relating to the practice of purported practice of the practitioner's profession 1. The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139(B)(1) that is relating to the practice of the practitioner's profession. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 the Court considered the dictionary meaning of both improper and unethical. The Court accepted "improper" as bearing the meaning "not in accordance with propriety of behaviour…" and "unethical" as "contrary to moral precept, immoral…" 2. We are not persuaded that the Commission has established that the practitioner's conduct as demonstrated by the proven Complaints whether singly or cumulatively can amount to conduct which is improper or unethical relating to the practice of his profession. 3. However, we are comfortably persuaded that the proven Complaints amount to unprofessional conduct. Dr Mullins, whose expertise was unchallenged considered each complaint and the supporting particulars and in relation to each said that the practitioner's conducted fell significantly below the standard reasonably expected of a practitioner of equivalent level of training and or experience and in reach respect said that the practitioner's conduct invited her strong criticism and the conduct particularised clearly fell below the relevant standard. 4. Professional misconduct is defined in s 139E of the National Law to be: (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. A finding of professional misconduct does not necessarily dictate cancellation or suspension of the practitioner's registration however clearly by its terms speaks to serious conduct. 2. It is well established that prescribing drugs of addiction recklessly or in contravention of the law can constitute professional misconduct. 3. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Kirby P said at [200]. As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner … 1. The practitioner acknowledged that satisfaction of his prescribing conduct referred to in the Complaints is capable of amounting to professional misconduct although urges the Tribunal not to make that finding. 2. The Commission submits that the practitioner's demonstrated conduct was of a sufficiently serious nature as to amount to professional misconduct and relies on the following matters established by the evidence: 1. The practitioner's conduct involved the prescription of dangerous schedule 8 drugs as described by the expert: * Oxycodone (Oxycontin), a narcotic analgesic used for moderate to severe chronic pain unresponsive to non-narcotic analgesia. Generally it is prescribed for short term use for injury and for up to two weeks; * Fentanyl (prescribed in two forms, Actiq and Fentora) which is a short acting narcotic analgesic to which a patient can very quickly develop a tolerance. It is generally prescribed to palliative care patients; * Hydromorphone hydrochloride (Dilaudid) a narcotic analgesic which is extremely potent and which is generally prescribed to palliative care patients; * Alprazolam (Kalma, Alprax) a short acting benzodiazepine generally used for panic disorder where other treatments have failed or are inappropriate. In 2014 it was rescheduled from being a Schedule 4D drug to Schedule 8. 1. The practitioner is a Fellow of the Royal Australian College of General Practitioners and has had training in the need to keep proper records and in safe prescribing. In 2000, he completed a course on methadone prescribing. He had been in practice in general practice from 1994 and must have had access to information about safe prescribing and adequate record keeping. 2. Notwithstanding undertaking further education in safe prescription of opioids in April 2018, record keeping in October 2018 and in opioids in chronic pain in October 2019, he continued his pattern of prescribing to the patient and his records remained inadequate. 3. The practitioner agreed that he was aware of the signs to look for in potential drug seeking patients and in the course of his practice many drug seeking patients had attended the practice and had been turned away. His notes reveal this awareness in that on a couple of occasions he checked the patient's arm for needle marks and noted "denies diversion" which he said was in response to asking the patient whether he was using all of the drugs prescribed. 4. The practitioner's notes also show attempts by him to limit the frequency of prescribing, telling the patient not to return for a repeat prescription until after a certain time. The notes however show that on nearly every occasion the patient returned before the nominated time and the practitioner prescribed for him. At least by 2010, if not before the practitioner considered the patient to be a chronic abuser of opioids. Red flags 1. The practitioner continued to prescribe these drugs for the patient notwithstanding the existence of a number of "red flags" pointing to drug abuse that is the patient: * Frequently claiming that he had run out of medication; * Requesting specific potent addictive medication by name and by dose * Requesting repeat prescriptions very soon after it was last prescribed, sometimes within days of prescribing; * Requesting a shortening of the time between repeats of prescriptions * Changing pharmacies to evade attempts by the pharmacist to limit the amount dispensed to him * Giving "far fetched" excuses as to why he needed a further prescription such as his drugs were stolen from his luggage at a party at Robert Downey Junior's house and that Robert Downey Junior had consumed his drugs and that he was travelling to the USA to work on movies * Inconsistent medical history, for example when the patient requested a prescription for lithium, telling the practitioner that he had been prescribed it for a long time yet a subsequent blood test for serum lithium did not support the patient's assertion. * Clear conflict between the patient's accounts of his first class overseas travel and ski trips and his requests that the practitioner provide him with Centrelink medical certificates; * Frequent discrepancies between his purported dates of travel and his return to the practitioner seeking further prescriptions; * The documents given by the patient to the practitioner ostensibly supporting his overseas travel were not air tickets but itineraries. 1. Despite the ineffectual attempts made by the practitioner to limit the patient's return for further prescriptions, he continued prescribing for the patient. Doctor Shopper reports 1. The practitioner received three reports on 19 September 2017, May 2018 and July 2019, that the patient was attending other practitioners who were prescribing oxycodone, diazepam, amitriptyline hydrochloride and lithium for the patient. The reports reflect a three-month period up to the date of the report. 2. The first notification showed that the patient received 532 tablets of Oxycontin from the prescriptions of the practitioner and two other practitioners. The practitioner noted the contents of the report in his notes but did not attempt to contact the other prescribing practitioners. On 20 September 2017, the practitioner noted that he had spoken to the patient and noted the patient's agreement not to see other general practitioners and that he was be on a "3 month probation" and "denies diversion". The practitioner continued to prescribe to the patient. 3. On 22 May 2018, the practitioner received another report which indicated the patient attended one other practitioner and between them a total of 1036 oxycodone tablets were prescribed. The practitioner did not attempt to contact the other prescriber nor did he make a note of the report. He continued to prescribe to the patient. 4. On 23 July 2019, the practitioner received the third report which identified two other practitioners prescribing to the patient and in the reporting period, the patient received 720 oxycodone tablets. The practitioner made no note of the report and did not make inquiries of the other prescribers. 5. The practitioner continued to prescribe for the patient despite notes made by colleagues in the patient's file which raised concerns about the patient's use and potential abuse of the opioids. Reported queries and concerns of dispensing pharmacists 1. The practitioner continued to prescribe notwithstanding being notified on 23 April 2018 by a pharmacist who asked whether he could dispense the drugs prescribed in a period shorter than that written on the prescription. The practitioner authorised the drugs to be dispensed. On 11 May 2018 the patient attended the practitioner who wrote PBS prescriptions for 56 tablets of 40mg oxycodone and 56 tablets of 80mg oxycodone and private prescriptions for 180 tablets of 1600mcg Actiq, 320 tablets of 8 mg Dilaudid and 200 tablets of 2mg Kalma 2. On 24 July 2019, a pharmacist contacted the practitioner and attached the forms necessary to obtain authorisation to prescribe Schedule 8 drugs. That afternoon the practitioner wrote private prescriptions for the patient for 40mg and 80mg oxycodone. The practitioner did not apply for authorisation. 3. On 26 July 2019, the practitioner noted the patient told him that a particular pharmacist would only give him a limited number of Kalma (alprazolam) tablets and he said that he would go to another pharmacy to have the drugs dispensed. That day the practitioner wrote PBS prescriptions for 28 tablets of both 40mg and 80mg oxycodone and also wrote private prescriptions for 150 tablets of 2mg Alprazolam. 4. After being contacted by a pharmacist on 31 July 2019 concerned about a prescription of 600 Actiq lozenges with no repeats, the practitioner authorised the pharmacy to dispense the drug at a rate of 3 boxes of 30 lozenges once per week. When the patient next returned on 21 August 2019, the practitioner prescribed, inter alia, 630 lozenges of Actiq. 5. On 29 October 2019 a pharmacist called the practitioner and told him that based on a conversation overheard between the patient and his daughter, the pharmacist was concerned that the patient was diverting the medication prescribed and suggested the practitioner write prescriptions for lesser amounts but with repeats. The patient attended the practitioner 4 days later and the practitioner wrote two PBS prescriptions for 40mg and 80mg oxycodone and one month later wrote PBS prescriptions with no repeats for 56 tablets each of 40mg and 80mg oxycodone and private prescriptions for 320 tablets of 8mg Dilaudid, 600 lozenges of Actiq and 150 tablets of 2mg alprazolam. Record keeping 1. The Commission argued that poor record keeping can amount to professional misconduct and submitted that it did in this case. The Commission relied on the well accepted rationale for comprehensive record keeping to inform a practitioner in giving proper and appropriate treatment to patients, and that the notes will enable another practitioner to treat a patient as quickly as possible by reference to existing notes. Risk of harm to the patient 1. The Commission argued that the practitioner's prescribing for this patient posed a serious risk of harm to the patient in doses over 120mg of morphine equivalent is associated with an increased risk of mortality; 2. It was submitted that to prescribe oxycodone, fentanyl, alprazolam and dilaudid to a patient with a history of drug dependence carries risk of overdose and death and maintains dependence. There is a risk of diversion of the drugs to the illicit market with associated risks of addiction and death. To prescribe these drugs to a patient on methadone risks the methadone program failing to address the patient's addiction, overdose and death. Opioids in combination with benzodiazepines increase risks of respiratory depression, sedation and death. Observations of the patient at the methadone clinic were of him being apparently sedated and confused and drowsy. The practitioner himself described the patient often of "droopy and tired appearance". The practitioner accepted that his prescribing posed a risk of over sedation in the patient. Risk of harm to the community 1. The evidence suggests a real possibility that the patient was diverting the medication prescribed by the practitioner which poses a significant risk to the community of the dissipation of drugs and undermines the community expectation that practitioners will "combat not facilitate" inappropriate prescribing. Assessing the seriousness of the practitioner's conduct 1. The Commission submitted that even though the Complaints concern the practitioner's treatment of but one patient, the period of time over which the poor prescribing took place, the extent of the instances of prescribing, 53 in the first period in which the patient consulted the practitioner and 576 in the second period; the persistent prescribing in the second period of attendances in the knowledge that the patient had most likely stolen the prescriptions which were presented with the practitioner's name forged on them and failing to apply for authority to prescribe the practitioner prevented the monitoring of the patient's access to these drugs and enabled other doctors to prescribe the same drugs for the patient. To prescribe merely because the patient asked for a drug and nominated the dose, was unsafe. The amount prescribed by the practitioner over the identified periods, if all consumed by the patient was "incompatible with life". The practitioner's submissions 1. As we have said, the practitioner argues that his conduct established by the Complaints is not of such seriousness to amount to professional misconduct or if it does, it does not warrant suspension of his registration. 2. The practitioner acknowledged that "on many occasions" his prescribing was inappropriate which put both the patient and the wider community at risk and his poor record keeping amounted to unprofessional conduct. 3. However, it was submitted that the practitioner found the patient to be very manipulative, incredibly charismatic and dominating which led to him submitting to the patient's demands. 4. The practitioner acknowledged the presence of red flags pointing to opioid addiction early on in his treatment of the patient but regarded his complaints of pain initially as genuine and later as a mix of genuine and drug seeking but attempted to have the patient attend a pain specialist for review. 5. The practitioner said that the patient did not initially engage in drug seeking behaviours and observed that on one occasion the patient complied with his restriction on the time in which the patient could return for a further prescription. There were absences in which the patient did not attend the practitioner in the first period of attendances. The practitioner agreed that the patient's drug seeking behaviours increased over time. 6. The practitioner said that people seeking drugs attended the practice but they had been sent away and thus he did not have a lot of experience with such patients. He regarded the patient as different. 7. It was argued that the practitioner's notes reveal concern for the patient and the level of prescribing sought. The submissions cited the notes in which the practitioner said that the patient understands possible addiction to the drug prescribed, enquired if the patient was diverting the drugs, made three enquiries of the doctor shopping program, attempted to restrict the prescriptions given to the patient and made many attempts to have the patient attend a pain specialist. 8. It was submitted that the practitioner attempted to verify the patient's claims of overseas travel as a reason for the prescription of large quantities of drugs. 9. The practitioner wished to keep the patient within the practice to persuade him to attend a pain clinic and was concerned that to stop prescribing or to gradually reduce the patient's drugs would not be effective. 10. The practitioner said he was out of his depth with this patient. In hindsight he said he should have stopped treating him and discussed the patient with his colleagues. Discussion 1. While the Tribunal accepts that the practitioner made attempts to have the patient attend a pain specialist and to restrict the patient's access to drugs, the attempts were ineffectual. Time limits were not enforced, the patient's excuses for not attending the pain clinic were unchallenged. 2. The practitioner said that his "game plan" or management plan was to maintain the patient on opioids until he saw a pain specialist. However, at the patient's request, he added other drugs of addiction to the oxycodone first requested. 3. Even in the early days of the patient consulting the practitioner, it was the patient not the practitioner who determined what drugs were prescribed and in what dose. 4. When the patient returned to the practitioner's practice in 2016, the drugs and doses prescribed were dictated by the patient. The practitioner said, when asked why he prescribed lithium for the patient that he asked for it and said that the patient "knew his medication very well". Equally he said that he prescribed sodium valproate for the patient even though he didn't know why he needed it and for a condition he knew nothing about. In short, the practitioner abandoned his responsibility to safeguard the patient's health and safety and allowed himself to become the patient's agent. 5. The practitioner said both before the Tribunal and at the s150 hearing that looking at his conduct in hindsight there was much he could have done to manage the situation and wrest back control from the patient and to address the patient's addictive behaviour and his pain, if genuine. He said that he now had greater insight into the need to keep proper records. He said at the s 150 hearing that his treatment of the patient had taught him the importance of doing what was best for the patient not what the patient wanted, and he understood to seek advice about what to do with patients like Patient A. 6. It is accepted that in the time since his treatment of the practitioner, the practitioner has engaged in education and self-reflection and feels he has complete insight into his past poor professional conduct and is confident that in the future he would not fall prey to a patient like Patient A. 7. However, notwithstanding the insight and learning gained by the practitioner since he treated Patient A, the duration, extent and seriousness of the practitioner's prescribing is, in our view of such a nature that it well amounts to professional misconduct. 8. When compared with the practitioner's prescribing for the patient, his extremely poor record keeping pales somewhat in severity. However, the practitioner's notes for the patient in the second period in which he saw the patient were in many instances virtually non-existent. For example, on 13 April 2018, the practitioner's note is: Going to usa next week LA for a few weeks 1. Under the heading: "Reason for contact" is written "prescription" 2. Equally the note for 11 May 2018 is: Returned wed night. Working on acqua man & dark phoenix movies. Departs in a week. Pain clinic appointment is in June 2018 1. No other practitioner could have managed the patient based on these notes and in our view, given the patient's opioid dependence, this is a significant failing. 2. The practitioner's poor record keeping was not restricted to this patient. In response to a complaint by a patient about the practitioner's treatment of her made in 2018, in February 2019 a Performance Interview was held with the practitioner where it was considered amongst other things, his record keeping was unsatisfactory. 3. As a result, the practitioner said he had made changes in his practice to improve record keeping to include increased detail of history, and examination, and to include relevant negative findings. A performance assessment conducted in August 2019 concluded that the majority of the practitioner's records reviewed were satisfactory. 4. We are not persuaded that the practitioner's poor record keeping in relation to this patient was such that it amounts to professional misconduct even when considered cumulatively with the other established complaints. What order then should be made to protect the public 1. The Commission argued that nothing short of a suspension of the practitioner's registration for 6 months would meet the objects of the section. It was said that such was the extent duration and seriousness of the practitioner's prescribing conduct that suspension was necessary to maintain confidence that practitioners would combat drug abusing patients and protect the community. 2. In HCCC v Do [2014] NSWCA 307 at [35] the Court (Basten and Meagher JJA) said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. It was argued for the practitioner that a reprimand would be sufficient to meet the seriousness of the conduct. We do not agree. For the reasons set out above we accept that the protection of the health and safety of the public, to denounce the conduct and to maintain confidence in the medical profession, we propose to order the practitioner's registration be suspended for a period of six months. 2. The Commission set out the practice conditions which it said were appropriate to be imposed and they were not contentious, however, the practitioner indicated that it would assist his practice if he was permitted to administer or prescribe Schedule 4D drugs but does not seek to administer or prescribe Schedule 8 drugs. 3. Given the duration, nature and extent of the practitioner's prescribing, we are not confident that he may not feel pressured to mis-prescribe Schedule 4D drugs if he was authorised to handle and dispense them. We are not inclined to permit him to do so. Although he has made steps to ensure he would prescribe drugs of addiction safely, those learnings and steps are nascent and we are not confident the health and safety of the public could be protected were he be permitted to handle those drugs. 4. The Commission sought an order that the practitioner pay its costs and that was not opposed. Orders 1. Pursuant to section 149C(l)(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. 2. The Respondent's registration is subject to the following practice conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the 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 practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time time) and as subsequently determined by the appropriate review body. 1. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Problem Definition/Diagnosis 2. Management/Advice/Safety netting 3. Prescribing 4. Medical Records 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed these conditions 1. Not to practise until a supervisor has been approved by the Medical Council of NSW. 2. 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. 1. The Audit is to be held within 3 months from the date of decision and subsequently as required by the Council. 2. The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements. 3. To authorise the auditor(s) to provide the Council with a report of their findings. 4. The practitioner is responsible for any costs arising out of compliance with the audit and any subsequent audits and reports. 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 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 3. The respondent is to pay the costs of the applicant, the Health Care Complaints Commission, as agreed or assessed. 4. The non-disclosure order made on 18 March 2022 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (NSW) prohibiting the disclosure of the name of the patient, referred to as Patient A in these reasons, is continued and the non-disclosure order made on 19 August 2022 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (NSW) prohibiting the disclosure of the name of the patient, referred in the material before the Tribunal as Patient B, is continued. ********** 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 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 22 February 2023 - Coversheet - Name of Respondent corrected. 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: 22 February 2023