Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Allen [2023] NSWCATOD 69 Hearing dates: 13 and 14 February 2023 Date of orders: 31 May 2023 Decision date: 31 May 2023 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr H Wilson, Senior Member Dr J Aitken, Senior Member D Telford, General Member Decision: 1. Dr Allen's registration as a medical practitioner is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. A non-review period of one year, from the date of these orders, is imposed upon Dr Allen pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW). 3. Dr Allen is to pay the costs of the Health Care Complaints Commission, to be agreed or assessed. Catchwords: HEALTH — Professional registration and discipline — Unsatisfactory professional conduct – Professional misconduct - impairment Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 Poisons and Therapeutic Goods Regulation 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 Chen v Health Care Complaints Commission [2017] NSWCA 186 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Tung v Health Care Complaints Commission [2011] NSWCA 219 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Christopher Peter Allen (Respondent) Representation: Counsel: P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/00196138 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the names of the patients set out in the Schedule to the complaint is prohibited. REASONS FOR DECISION 1. By application filed on 5 July 2022, and amended on 13 February 2023 ('the application'), the Health Care Complaints Commission ('the HCCC') sought disciplinary orders under the Health Practitioner Regulation National Law (NSW) ('the National Law') in relation to Dr Allen, a general practitioner. 2. The application was based upon a complaint. The original version of the complaint was filed with the application on 5 July 2022, and an amended complaint was filed on 9 February 2023 and substituted for the original complaint on 13 February 2023. We will refer to the amended complaint as "the Complaint". The Complaint contains seven allegations, named Complaint One to Complaint Seven. 3. In his Reply, the respondent admitted a substantial portion of the Complaint. 4. The onus of proof, in these proceedings, rests upon the HCCC. The requisite standard of proof is proof on the balance of probabilities, based upon evidence which is sufficiently probative to afford us a state of satisfaction that a level of proof has been provided which is commensurate with the gravity of the allegations (see Briginshaw v Briginshaw (1938) 60 CLR 336). When, in this decision, we say that a fact has been proven, we mean that it has been proven to the standard of proof described in this paragraph. 5. At the hearing of the matter, we were provided with documentary evidence from both sides. We heard oral evidence from Dr Allen and Dr Samuels, a psychiatrist. Background 1. Dr Allen was first registered as a medical practitioner in 1999. He obtained his Fellowship of the Royal Australian College of General Practitioners in 2007. He was awarded a Masters of Medicine (Sexual Health) from the University of Sydney in 2012. 2. From 2016, Dr Allen worked as a general practitioner in private practice. 3. Conditions were imposed upon Dr Allen's registration by the Medical Council of NSW on 6 December 2017. 4. The conditions on Dr Allen's registration were varied and added to on 25 July 2019. The Complaint and the Reply Complaint One 1. Complaint One alleges that Dr Allen is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law, in that his conduct demonstrates that the knowledge, skill or judgment possessed, or care exercised by him, in the practice of medicine, is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In the alternative, or additionally, improper or unethical conduct in the practice or purported practice of medicine is alleged. 2. In his reply, Dr Allen admits that such of his conduct as is alleged in Complaint One, and admitted by him, amounts to unsatisfactory professional conduct under s 139B(1)(a) of the National Law. 3. Complaint One relates to allegations concerning Dr Allen's prescribing for Patients A, B, C, D and E. 4. Complaint One says, under the heading "Background to Complaint One": The drugs identified in Annexures A to E are in the following categories: i. Drugs of addiction within the meaning of the Poisons and Therapeutic Goods Act 1996 ("PTGA"), being drugs contained within Schedule 8 of the Poisons List proclaimed under section 8 of the PTGA ("Schedule 8 drugs"). ii. Prescribed restricted substances within the meaning of the PTGA, being drugs contained in Schedule 4 Appendix D of the PTGA ("Schedule 4D drugs"). 1. The HCCC relied upon a report of an expert general practitioner, Dr Jalota, dated 27 July 2021 (see Exhibit A1, Tab 21). Dr Jalota was not required for cross-examination. In her report, Dr Jalota gave the following information regarding the drugs the subject of the allegations in the Complaints against Dr Allen: Part 1 Relevant Standards: 1 Prescribing Schedule 8 drugs to patients of drug dependence: Clinical Indications . A Oxycodone (Oxycontin) is a strong Opioid which achieves analgesia by reducing the transmission of nociceptive impulses (affecting the Central Nervous System) and modulating the descending inhibitory pathways from the Brain. Oxycodone use is generally limited to acute pain or cancer pain (majority in palliative care) As per MIMS: " OxyContin modified release tablet is indicated for the management of severe pain where: Other treatment options have failed, are contraindicated, not tolerated or are otherwise inappropriate to provide sufficient management of pain, and the pain is opioid-responsive; and requires daily, continuous, long term treatment. OxyContin modified release tablet is not indicated for use in chronic noncancer pain other than in exceptional circumstances. OxyContin modified release tablet is not indicated as an as-needed (PRN) analgesia. The usual starting dose is 10mg in Opioid naïve patients with escalation of dose to make the patient pain free and without side effects. The usual duration is 4 weeks in Non Cancer patients due to risk of tolerance, dependence and break through pain. Alprazolam : Is a Benzodiazepine used for short periods (up to 4 weeks) in patents with Anxiety and sometimes can be used long term in patients with Panic Disorder with or without Agoraphobia if the patient meets the DSM 111 R criteria. The usual starting dose is 0.5 mg to 1.5mg given in divided doses. The maximum dose should not exceed 4mg daily in divided doses. Elderly patents will need a dose reduction . Fentanyl : Is used "For the management of pain associated with cancer, palliative care, and other conditions in patients where: other treatment options have failed, are contraindicated, not tolerated or are otherwise inappropriate to provide sufficient management of pain; and the pain is opioid-responsive; and severe enough to require daily, continuous, long term opioid treatment. Not for use in opioid-naïve patients." Dose With all opioids, the safety of patients using the products is dependent on health care practitioners prescribing them in strict conformity with their approved labelling with respect to patient selection, dosing and proper conditions for use. Duration of treatment will depend on the reason for starting and adequate response from the patient. Usual starting dose is 12 ug every 72 hours and up titrating depending on the response. 2 Prescribing Benzodiazepines to patients with a history of drug dependence A Clinical indication for Prescribing benzodiazepines: Oxazepam: Indicated for short term(4 weeks)management of Anxiety Disorders and symptoms of Anxiety. Also used for treating Alcohol withdrawal. Diazepam : Indicated for Management of anxiety disorders or for the short term relief of the symptoms of anxiety. Anxiety or tension associated with the stress of everyday life usually does not require treatment with an anxiolytic. In acute alcohol withdrawal, Diazepam may be useful in the symptomatic relief of acute agitation, tremor, impending or acute delirium tremens and hallucinosis. Diazepam is a useful adjunct for the relief of reflex muscle spasm due to local trauma (injury, inflammation) to muscles, bones and joints. It can also be used to combat spasticity due to upper motor neuron lesions such as cerebral palsy and paraplegia, as well as in athetosis and stiff man syndrome. Temazepam: Indicated for adjunctive therapy in the short-term management of insomnia in adults. B Accepted therapeutic standards in terms of dosage and duration Oxazepam : Should be used in Anxiety with the following recommended doses as per the Australian Hand Book of Medicine Mild to Moderate Anxiety: oral 7.5–15 mg 3 or 4 times daily. Severe Anxiety oral 15–30 mg 3 or 4 times daily. Elderly : oral, initially 7.5 mg 2 or 3 times daily, to a maximum of 15 mg 3 or 4 times daily. Reserve for short-term (2–4 weeks) or intermittent use only; they should be part of a broader treatment plan, not a first or sole treatment. Diazepam : Given in acute setting (Hospital only) as Intravenous for Acute severe Anxiety ,agitation, behavioural disturbances and for Status Epilepticus(Convulsions) as a 5-10 mg dose ,repeated if necessary every 5-10 min to a maximum of 30 mg . Oral dose 2-5 mg as a single dose for Anxiety/Agitation. Duration of treatment is reserved for short term of 2-4 weeks or intermittent use only. The treatment should be part of a broader treatment plan, not a first or sole treatment. Temazepam Usual dose 10-20 mg/night and 5-10mg at night for the Elderly. Duration of treatment is reserved for short term of 2-4 weeks or intermittent use only. The treatment should be part of a broader treatment plan, not a first or sole treatment. 3 Prescribing S8 drugs in combination with Benzodiazepines Concomitant use of S 8 and benzodiazepines, may result in sedation, respiratory depression, coma and death. 4 Prescribing Paracetamol and Codeine A Panadeine Forte is indicated for the short-term management of severe pain for which other treatment options have failed, are contraindicated, not tolerated or are otherwise inappropriate to provide sufficient management of pain. B Dose and Duration: 1 or 2 tablets every 4 to 6 hours if necessary for relief of severe pain. Do not exceed 8 tablets in a 24-hour period. C If a GP is considering long term use of Panadeine forte, it is important to exhaust all the other non opioid options first. Try non pharmaceutical therapy which may include a multi disciplinary approach. A full assessment of the cause of the pain and investigations to rule out possible treatable causes . Review by experts and pain specialists . 1. The HCCC tendered information provided by Services Australia, sometimes referred to as Medicare records and Pharmaceutical Benefits Scheme records (PBS records) (see Exhibit A2). The HCCC also tendered dispensing data from Discount Drug Store Redfern and Gold Cross Guardian Pharmacy (see Exhibit A1 Tabs 10-14). The HCCC also tendered the clinical records for Patients A to E (see Exhibit A1 Tabs 14-18). The HCCC relied upon these records to prove the prescribing alleged in the Complaints. There was no challenge to the veracity of the records, and we accept that they are accurate. Patient A 1. Patient A consulted with Dr Allen from mid-2016 until late 2019. 2. The allegations in Complaint One, in relation to Patient A, are as follows: Particular 1 1. From 23 October 2018 to 22 November 2019, on the dates and in the quantities set out in Annexure A, the practitioner inappropriately prescribed the Schedule 8 drugs Alprazolam, Oxycodone and Fentanyl to Patient A and in doing so failed to: a. recognise drug seeking behaviour by Patient A; b. undertake an appropriate assessment of Patient A before prescribing the drugs to him, including: i. obtaining the relevant medical history; ii. performing a comprehensive physical examination; iii. determining whether there was a clinical indication for prescribing the drug; iv. discussing doses, duration and possible side effects of the drug with Patient A; c. make appropriate referrals to a relevantly trained specialist such as a drug and alcohol specialist, psychologist, psychiatrist or pain specialist. 1. Annexure A to the Complaint is a table showing the prescriptions allegedly issued by Dr Allen to Patient A between 23 October 2018 and 22 November 2019. It was compiled by the HCCC using information taken from the sources set out in [15], above. 2. Annexure A says that Dr Allen gave a prescription, with two repeat prescriptions, for alprazolam 1mg to Patient A on 20 June 2019. This is substantiated by the dispensing data (Exhibit A1 Tab 11, which shows that one of the prescriptions was dispensed on 20 June 2019 and the first repeat was dispensed on 4 December 2019) and Dr Allen's records (Exhibit A1 Tab 14), leaving one repeat prescription yet to be dispensed at that date. 3. Annexure A says that Dr Allen prescribed oxycodone to Patient A on 59 occasions from 23 October 2018 to 22 November 2019. This is substantiated by the dispensing data (Exhibit A1 Tab 11) and Dr Allen's records (Exhibit A1 Tab 14). 4. Annexure A says that Dr Allen issued 121 prescriptions for fentanyl to Patient A between 23 October 2018 and 22 November 2019. This is substantiated by the dispensing data (Exhibit A1 Tab 11) and Dr Allen's records (Exhibit A1 Tab 14). Fentanyl was prescribed as fentanyl citrate, usually at 800mcg, but occasionally at 1600mcg and 1200mcg. It was also prescribed as fentanyl patches, at a dosage of 100mcg/hour. 5. In his reply, Dr Allen admits particular 1 of Complaint One for the period from 3 January 2019 to 25 October 2019, and says that there are insufficient records to support the totality of the prescribing set out in Annexure A. We infer that Dr Allen does not admit the prescribing alleged for Patient A from 23 October 2018 to 2 January 2019, inclusive. 6. The HCCC provided us with a Chronology ('the Chronology"), which, among other things, details each allegation of prescribing in relation to each patient mentioned in the Complaint. 7. The prescribing of fentanyl set out in Annexure A as having occurred on 23 October 2018 is evidenced by the dispensing data from Discount Drug Store Redfern, which is set out in Exhibit A1 at Tab 10.The prescribing of Fentanyl, set out in Annexure A as having occurred on 23 November 2018, is also evidence by the Discount Drug Store data. There is no reason to doubt the veracity of that data. Those prescriptions are the only ones outside of the period the subject of the admission. All of the prescriptions set out in Annexure A are supported by evidence. 8. The facts alleged in Particular 1 of Complaint One have been proven. 9. In his statement, dated 30 January 2023, in relation to Patient A, Dr Allen said that the first time Patient A consulted him, Patient A told him that he was not an Australian resident, so he did not have a Medicare card, and further said that his employer was covering his medical costs, including medication. Dr Allen said that Patient A showed him a letter which appeared to be from a specialist doctor overseas, and which said that Patient A suffered from chronic migraine and had been prescribed various medications. The letter said that Patient A had participated in a clinical trial. Dr Allen's recollection was that the letter had been scanned into the practice records, however, it was not produced. 10. Patient A gave Dr Allen a non-existent street address. 11. Dr Allen said that Patient A complained of excruciating migraines, including nausea and vomiting, and said that only fentanyl and oxycodone gave him relief. 12. Dr Allen, in his statement, queried the pharmacy records in relation to the dispensing of alprazolam on two occasions, saying that he did not recall prescribing it to Patient A on two occasions. He recalled prescribing it once, for anxiety and distress over the death of a friend. We find that Dr Allen gave Patient A two prescriptions for alprazolam on 20 June 2019, one of which was dispensed on 20 June 2019. The other prescription was dispensed on 4 December 2019. Dr Allen agreed that his clinical notes do not disclose the reason for the prescribing. 13. Dr Allen admitted that he was unaware that the ACI Guidelines said that the only approved indication for the prescribing of fentanyl was cancer pain, and that it was contraindicated for acute pain such as migraines. 14. Dr Allen said that he formed the view that Patient A had developed a high tolerance for medication, and this informed his prescribing. 15. Dr Allen referred Patient A to a neurologist, but he did not attend, and Dr Allen did not follow that up. Dr Allen accepts that he ought to have considered other referrals, but said that he relied upon the overseas doctor's letter. 16. The increase in dosage of fentanyl was explained by Dr Allen as a response to a reported shortage at the Pharmacy of the lower dosage. Dr Allen accepts that he should have monitored how long the medication he was prescribing should have been lasting. 17. In his statement, Dr Allen described himself as "naïve" in relation to Patient A, and agreed that the Schedule 8 medication that he prescribed to Patient A was excessive. Dr Allen said that he had limited experience in treating migraine of the type described by Patient A, and "relatively limited" experience in prescribing fentanyl, particularly lozenges, so he was "guided" by the letter he says Patient A showed him from the overseas doctor. Dr Allen did not suspect that the drugs were being on-sold by Patient A. 18. Dr Allen said that he did not "access the doctor-shopper hotline" in relation to Patient A, because he believed that it was not available in relation to a patient who did not have a Medicare card. 19. Ms Linda Yang, a qualified and experienced pharmacist who holds the position of Senior Pharmaceutica Officer, Inspections and Investigations and is an inspector under s 42 of the Poisons and Therapeutic Goods Act 1966 (NSW), provided a brief statement dated 25 November 2020 (Exhibit A1 Tab 8) and a report dated 14 July 2020 (Exhibit A1 Tab 7) in relation to this matter. 20. Ms Yang's statement and report were admitted into evidence without objection, and Ms Yang was not required for cross-examination by the Respondent. 21. Ms Yang's report discloses that the Pharmaceutical Regulatory Unit ("PRU"), which operates within the NSW Ministry of Health, became aware of some of Dr Allen's prescribing of Schedule 8 drugs in the course of an investigation into a pharmacy which had dispensed some of the drugs prescribed by him. An investigation of Dr Allen's prescribing followed. 22. In her report, Ms Yang says the following, in relation to Dr Allen's prescribing to Patient A: 31.1. Dr Allen has never held an authority under section 29 of the Poisons and Therapeutic Goods Act 1966 to prescribe a drug of addiction for [Patient A]. 31.2. From 3 January 2019 to 25 October 2019, Dr Allen issued prescriptions for Schedule 8 drugs to [Patient A] for a total of 9 supplies of 60 fentanyl 1600mcg lozenges, 21 supplies of 60 fentanyl 1200mcg lozenges, 36 supplies of 60 fentanyl 800mcg lozenges, 20 supplies of 5 fentanyl 100mcg/hour patches, 36 supplies of oxycodone 20mg capsules, 36 supplies of oxycodone 10mg capsules, 6 supplies of 28 tablets of oxycodone 10mg (Targin® 10/5mg) and 3 supplies of alprazolam 2mg tablets. In addition to this, Dr Allen also prescribed [Patient A] the centrally acting drugs ondansetron 8mg tablets and topiramate 200mg tablets. In the 295 day period, [Patient A] was prescribed a total of: • 540 fentanyl 1600mcg lozenges • 1,260 fentanyl 1200mcg lozenges • 2,160 fentanyl 800mcg lozenges • 100 fentanyl 100mcg/hour patches • 720 oxycodone 20mg capsules • 888 oxycodone 10mg (in capsules and tablets) • 150 alprazolam 2mg tablets • 400 ondansetron 8mg tablets • 720 topiramate 200mg tablets 31.3. According to the Product Information (PI) for fentanyl lozenges from EMIMs (an Australian Pharmaceutical database), the only approved indication is for the "management of breakthrough cancer pain in patients with malignancies who are already receiving and are tolerant to opioid therapy for their underlying persistent (around the clock) cancer pain" and it is contraindicated in the treatment "of acute pain other than breakthrough pain (e.g. postoperative pain, headache, migraine)". 31.4. In the 295 day period [Patient A] obtained fentanyl lozenges equivalent to an average dose of over 13,911mcg daily. The PI for fentanyl lozenges states that the dose of fentanyl lozenges should be limited to a maximum of four units per day. This means that [Patient A] obtained fentanyl lozenges over 2 times the maximum daily dose of 6,400mcg (4 units of fentanyl 1,600mcg lozenges). 31.5. [Patient A] was also prescribed a total of 100 fentanyl 100mcg/hour patches where each fentanyl patch would last for 3 day and oxycodone at an average dose of over 78mg daily. This is equivalent to an oral morphine equivalent daily dose (oMEDD) of at least 418mg. As the pharmacokinetics for fentanyl lozenges is complex and variable, the oMEDD calculated for [Patient A] did not include the fentanyl lozenges prescribed. 31.6. According to Dr Allen's consultation notes, it appears that he referred [Patient A] on 12 March 2019 to be reviewed by a neurologist, Dr Karl Ng. It is unknown if the review occurred as there were no letters other than a referral letter to Dr Karl Ng dated 20 December 2019. 31.7. According to Dr Allen's consultation notes on 28 August 2019, [Patient A] visited him "For Fentanyl" and "Says that he can get a higher dose at a Specific Pharmacy". It appears that Dr Allen issued him prescriptions for fentanyl 1600mcg lozenges and fentanyl 800mcg lozenges. There were no other notes to explain why [Patient A] required an increased dose. 31.8. On 17 September 2019, Dr Allen recorded in his consultation notes for [Patient A] that he "Requires more analgesia for his migraines", "he may be leaving Australia at Christmas", "he requests repeats and Reg 24 on his prescriptions". It appears that Dr Allen then issued [Patient A] prescriptions for the Schedule 8 drugs fentanyl 1600mcg lozenges, fentanyl 1200mcg lozenges, fentanyl 800mcg lozenges, fentanyl 100mcg/hour patches, oxycodone 20mg capsules and oxycodone 10mg capsules. It is unknown why Dr Allen needed to provide [Patient A] with prescriptions 3 months prior to him leaving Australia and why they needed to be "Reg 24", noting that regulation 24 (now known as Regulation 49) is an inference of a Pharmaceutical Benefits Scheme (PBS) prescription written so that the quantities of the drug for the original and the repeats are supplied at the same time. Given that Dr Allen does not have a Medicare number recorded for [Patient A] and all prescriptions issued to [Patient A] were private, non-PBS prescriptions, the "Reg 24" term would not apply to [Patient A]. 31.9. All of the prescriptions for fentanyl lozenges were issued for 60 lozenges with 2 repeat supplies, a total quantity of 180 lozenges for each strength of fentanyl. As all of the fentanyl lozenges were prescribed with the directions for [Patient A] to take 1 lozenge daily, each prescription for fentanyl lozenges should have lasted at least 180 days however it appears that Dr Allen issued [Patient A] prescriptions for fentanyl lozenges at intervals as short as 15 days. For example, on 13 August 2019 Dr Allen issued [Patient A] a prescription for a total of 3 supplies of 60 fentanyl 800mcg lozenges and on 28 August 2019, Dr Allen issued another prescription to [Patient A] for a total of 3 supplies of 60 fentanyl 800mcg lozenges. It is noted that while the record of prescribing of fentanyl lozenges on 13 August 2018 is apparent in the prescribing records (see APPENDIX H), there was no record of a consultation or of any prescriptions printed for [Patient A] in the records containing the Patient Health Summary (see APPENDIX F). 31.10. Dispensing data obtained from Redfern Discount Drug Store indicates that each supply of 60 fentanyl lozenges, irrespective of strength, costs [Patient A] approximately $720. (APPENDIX M) This is equivalent to a total of up to $47,520 for the 66 supplies of fentanyl lozenges prescribed to [Patient A] in a period of under 10 months. This does not include the cost of the fentanyl patches, oxycodone capsules, oxycodone tablets, alprazolam tablets and the centrally acting drugs. 31.11. Dr Allen issued prescriptions to [Patient A] for 6 supplies of quantities of 20 capsules of oxycodone capsules in 10mg and 20mg strengths. The directions for use was 2 capsules daily and therefore each prescription should last at least 60 days. The interval of prescribing of oxycodone capsule appears to be as short as 36 days where prescriptions were issued to [Patient A] on 20 June 2019 and again on 26 July 2019. 31.12. It is expected that Dr Allen ought to have known that fentanyl lozenges and oxycodone was not the appropriate treatment for migraines and that [Patient A] may have been drug dependent. Dr Allen did not apply for an authority to prescribe Schedule 8 drugs to [Patient A] at any stage during his treatment. 31.13. Dr Allen ought to have referred [Patient A] for review and management by a specialist in pain medicine or a neurologist or drug and alcohol so that the appropriate treatment or possible dependence, misuse or abuse of these combinations of drugs could be addressed. However, it appears that Dr Allen continued to prescribe the Schedule 8 opioids fentanyl and oxycodone to [Patient A] at high doses and short intervals, above the maximum indicated dose for any appropriate therapeutic indication, in breach of clause 79 of the Poisons and Therapeutic Goods Regulation 2008. 31.14. In addition to the Schedule 8 opioids, Dr Allen issued a prescription for 3 supplies, a total of 150 tablets of alprazolam 1mg to [Patient A], to take "1 tablet daily when required". Dr Allen's consultation notes does not explain why [Patient A] required alprazolam tablets. The quantity prescribed would last approximately 5 months however, Dr Allen did not hold an authority to prescribe alprazolam to [Patient A] as required under section 28(2)(a) of the Poisons and Therapeutic Goods Act 1966. 1. Dr Jalota, in her expert report, said that the clinical notes did not disclose the reason why Dr Allen prescribed alprazolam to Patient A. Dr Jalota said that Dr Allen did not conduct the appropriate assessment of Patient A before prescribing alprazolam. He should have taken and recorded a detailed clinical history, and undertaken a detailed clinical examination. The clinical indication for prescribing alprazolam should have been identified and recorded and the possible doses and side effects should have been discussed. Dr Jalota's opinion is that Dr Allen's conduct was significantly below the applicable standard for a general practitioner in the prescribing of alprazolam. Dr Jalota commented that, even had it been indicated, it should have been prescribed in limited quantities to a benzodiazepine naïve patient, and for a maximum period of four weeks. The starting dose should have been 0.25mg once or twice per day, with a follow-up consultation prior to the issue of a further prescription. 2. In relation to Dr Allen's prescribing of oxycodone, Dr Jalota said, again, that there should have been a detailed clinical history taken and recorded, followed by a detailed examination. The clinical indication for the prescribing of oxycodone should have been identified in the clinical notes, with doses, duration and side effects discussed. None of this occurred. Dr Jalota said that neither back pain nor migraine constitutes a clinical indication for the prescribing of opioids. She noted that the quantity of oxycodone prescribed was well above the recommended dose and duration in non-specific lower back pain or migraines. Dr Jalota's opinion is that Dr Allen's conduct in relation to the prescribing of oxycodone to Patient A was significantly below the applicable standard for a general practitioner. 3. In relation to Dr Allen's prescribing of fentanyl to Patient A, Dr Jalota, again, was critical of Dr Allen's omission to take and record a detailed clinical history, and undertake a detailed examination. Dr Jalota criticised Dr Allen's failure to document the clinical indication for prescribing fentanyl with a discussion of the doses, duration and side effects. Dr Jalota said that there was no clinical indication for prescribing fentanyl patches for non-specific lower back pain or for migraines. Dr Jalota said that the quantity of fentanyl prescribed was well above the recommended dose and duration in non-specific lower back pain or migraines. Dr Jalota's opinion was that Dr Allen's conduct in relation to the prescription of fentanyl was significantly below the standard expected of a general practitioner. 4. We accept Dr Jalota's evidence. Particular 1 has been established. Particular 2 1. Particular 2 says: 2. From 23 October 2018 to 22 November 2019, on the dates and in the quantities set out in Annexure A, the practitioner prescribed the Schedule 8 drugs of addiction, Alprazolam, Oxycodone and Fentanyl to Patient A which: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; b. otherwise was not clinically appropriate in the patient's circumstances, having regard to the purpose for which it was prescribed, the quantities prescribed, dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. The Poisons and Therapeutic Goods Regulation 2008 provides in clause 79: 79 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty—20 penalty units or imprisonment for 6 months, or both. 1. Dr Allen admits the allegations in particular 2 of Complaint One. 2. The evidence of Ms Yang and Dr Jalota, summarised above at [36]-[42], establishes the allegations in particular 2 of Complaint One. Particular 2 of Complaint One has been proven and conceded. Particular 3 1. Particular 3 says: 3. On 20 June 2019 in the quantity set out in Annexure A, the practitioner prescribed the Type B Schedule 8 drug of addiction, Alprazolam to Patient A without a proper authority to prescribe under sections 28A or 29 of the PTGA: a. (withdrawn) b. in circumstances where the practitioner ought reasonably to have formed the opinion that Patient A was a drug dependent person. 1. Dr Allen, in his Reply, admits the allegation in particular 3 of Complaint One only in relation to the prescribing of alprazolam to Patient A on 20 June 2019, and says that he otherwise does not admit the allegations in particular 3. Subsequent to the filing of the Reply, particular 3 was amended so that Dr Allen's admission in his Reply is an admission to the whole of particular 3 of Complaint One. 2. It is common ground that Dr Allen never sought or held an authority under section 29 of the Poisons and Therapeutic Good Act 1966 to prescribe a drug of addiction to Patient A. 3. Dr Jalota, in her report, said, in response to the question as to whether Dr Allen should have regarded Patient A as drug dependent: Yes, he should have regarded this patient as drug dependent. He should have made the assessment when he was giving him the scripts as the doses of each of the medications was way too high and their concomitant uses should have alarm bells ringing. 1. Particular 3 of Complaint One has been proven (see [39]-[40]) and conceded. Particular 4 1. Particular 4 says: 4. On 20 June 2019, on the dates and in the quantities set out in Annexure A, the practitioner inappropriately prescribed opioids, namely Oxycodone and Fentanyl, in combination with benzodiazepines, namely Alprazolam. 1. Dr Allen admits particular 4 of Complaint One. 2. As we have said, the prescription by Dr Allen of the opioids oxycodone and fentanyl, in combination with alprazolam, as set out in Annexure A to the complaint, has been established. 3. In her report, Dr Jalota said: A concomitant use of Fentanyl, Oxycodone and Alprazolam can lead to sedation, respiratory depression, coma and death. Patient B 1. The allegations in Complaint One in relation to Patient B are as follows: Particulars 5-7 5. From 14 January 2020 to 17 June 2020, on the dates and in the quantities as set out in Annexure B, the practitioner inappropriately prescribed the Schedule 4D drugs, Oxazepam and Temazepam to Patient B and in doing so, failed to: a. recognise drug seeking behaviour by Patient B; b. undertake an appropriate assessment of Patient B before prescribing drugs to him, including: i. obtaining the relevant medical history including mental health history and suicide risk assessment. ii. discussing the use and misuse, possible side effects including on driving, and interactions of the drug with Patient B. c. make appropriate referrals to a relevantly trained specialist such as a drug and alcohol specialist, counsellor, psychiatrist or a general practitioner with a special interest in addiction medicine. 6. From 14 January 2020 to 17 June 2020, on the dates and in the quantities as set out in Annexure B, the practitioner prescribed the Schedule 4D drugs, Oxazepam and Temazepam, to Patient B which: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR. b. otherwise was not clinically appropriate in the patient's circumstances, having regard to the purpose for which it was prescribed, the quantities prescribed, dosages prescribed and the frequency and duration of the prescribing by the practitioner. 7. (withdrawn). 1. In his Reply, Dr Allen admits particulars 5 and 6. 2. The Poisons and Therapeutic Goods Regulation 2008, clause 34, says: 34 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty—20 penalty units or imprisonment for 6 months, or both. 1. The allegations in particulars 5 and 6 of Complaint One are substantiated by Dr Allen's clinical records. The prescribing on 15 April 2020 and 1 May 2020 are also substantiated by the PBS records. 2. Dr Allen prescribed oxazepam (15mg, 25 tablets) to Patient B on 14 January 2020, 18 March 2020, 15 April 2020, 1 May 2020 and 17 June 2020. 3. Dr Allen prescribed temazepam (10mg, 25 tablets) to Patient B on 21 February 2020, 18 March 2020, 1 May 2020 and 17 June 2020. 4. Ms Yang said, in her report: 34.3 In the period 14 January 2020 to 17 June 2020 Dr Allen prescribed [Patient B] 2 different Schedule 4 Appendix D benzodiazepines and one sedative, equivalent to a total of: - 125 tablets of oxazepam 15mg - 100 tablets of temazepam 10mg - 14 tablets of zolpidem 10mg 34.4 According to consultation notes made by Dr Allen on 21 February 2020, it appears that [Patient B] has a "local GP" who prescribes temazepam to him. 34.5 It is unknown why [Patient C] and [Patient B] needed to be prescribed multiple benzodiazepines and sedatives. As both benzodiazepines and sedatives bind to benzodiazepine receptors, the coadministration of these drugs can cause excessive sedative or hypnotic effects. This prescribing would be considered dangerous, in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in breach of clause 34 of the Poisons and Therapeutic Goods Regulation 2008. 1. Dr Jalota said, in her report, in relation to Dr Allen's prescribing to Patient B: Dr Allen's conduct was significantly below the standard of care. Temazepam was prescribed for Anxiety. An appropriate assessment should have included a proper mental health assessment including reasons for Anxiety and to screen for dependence. Temazepam should only be used short term and intermittently. The possible side effects including interactions with other Benzodiazepines and sedatives should have [been] discussed in detail and documented. The first line of treatment for Anxiety is often CBT with SSRI. .RACGP: "Prescription of benzodiazepines, should be based on a comprehensive medical assessment: a diagnosis; thoughtful consideration of the likely risks and benefits, as well as alternative interventions; and a management plan derived through shared decision making and continual clinical monitoring. 1. Dr Jalota said that, by short term, she meant 2 to 4 weeks. She noted that concomitant use of oxazepam and temazepam can be lethal. Side effects can include central nervous system (CNS) and respiratory depression, leading to coma or death. 2. Dr Jalota said that Dr Allen should have regarded Patient B as drug dependent. He should have made that assessment when Patient B specifically asked for temazepam. At that point, Dr Allen should have referred Patient B to a counsellor for review and to start cognitive behaviour therapy. 3. We find that particulars 5 and 6 of Complaint One have been proven. Patient C 1. The allegations in Complaint One in relation to Patient C are as follows: Particulars 8 – 10 8. From 23 May 2019 to 19 March 2020, on the dates and in the quantities as set out in Annexure C, the practitioner inappropriately prescribed the Schedule 4D drug, Diazepam, to Patient C and in doing so, failed to: a. recognise drug seeking behaviour by Patient C; b. undertake an appropriate assessment of Patient C before prescribing drugs to him, including: i. obtaining the relevant medical history including mental health history and suicide risk assessment; ii. discussing the use and misuse, possible side effects including on driving, and interactions of the drug with Patient C. c. make appropriate referrals to a relevantly trained specialist such as a drug and alcohol specialist, psychologist or psychiatrist. 9. From 18 April 2019 to 19 March 2020, on the dates and in the quantities as set out in Annexure C, the practitioner prescribed the Schedule 4D drugs, Zolpidem and Diazepam, to Patient C, in circumstances where the quantities prescribed, dosages prescribed, and the frequency and duration of prescribing by the practitioner did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 9 of the PTGR. 10. From 18 April 2019 to 19 March 2020, on the dates and in the quantities as set out in Annexure C, the practitioner inappropriately prescribed drugs that are benzodiazepines, namely Alprazolam, Oxazepam and Diazepam, in combination, with, or over the same period of time, as Zolpidem. 1. In his Reply, Dr Allen admits particulars 8, and 10, and the records substantiate the prescribing alleged. 2. Ms Yang said, in her report: In the period from 18 April 2019 to 19 March 2020 Dr Allen prescribed to [Patient C] 3 different benzodiazepines – the Schedule 8 drug alprazolam tablets, the Schedule 4 Appendix D drugs oxazepam 30mg tablets and diazepam 5mg tables, 2 different sedatives – zolpidem 10mg tablets and zopiclone 7.5mg tablets, which are now both Schedule 4 Appendix D drugs and a Schedule 4 centrally acting drug, escitalopram 20 mg tablets, [Patient C] obtained a total of: - 50 tablets of alprazolam 1mg - 25 tablets of oxazepam 30mg - 425 tablets of diazepam 5mg - 210 tablets of zolpidem 10mg - 30 tablets of zopiclone 7.5mg tablets - 336 tablets of escitalopram 20mg tablets 1. In [63] above, we set out the comments made by Ms Yang in relation to the combination of drugs Dr Allen prescribed to Patient C and Patient B. 2. Dr Jalota acknowledged that Dr Allen prepared a mental health plan for Patient C and referred him to a psychologist. However, Dr Jalota said, in her report, that Dr Allen's prescribing of diazepam with other benzodiazepines was significantly below the standard expected. Dr Jalota said that a proper assessment should have included a risk stratification for suicide each time and questions to make sure there were no side effects from polypharmacy use. 3. Dr Jalota said, in her report, that Dr Allen should have regarded Patient C as drug dependent and should have made that assessment when Patient C presented multiple times for scripts for benzodiazepines. He should have referred Patient C to a psychiatrist and a specialist in addiction medicine at an early stage. 4. In relation to particular 9, Dr Allen seemed to admit the allegations only in relation to those prescriptions issued between 23 May 2019 and 19 March 2020. 5. On 18 April 2019, Dr Allen issued Patient C with a prescription for zolpidem 10mg. This is recorded in Dr Allen's clinical notes. The prescribing alleged in Particular 9 of Complaint One from 23 May 2019 to 19 March 2020 is substantiated by various records, including Dr Allen's clinical notes, the dispensing records of the Discount Drug Store, Redfern and, in some cases, the PBS data. 6. We are satisfied that the allegations in particulars 8, 9 and 10 have been proven. Patient D 1. The allegations in Complaint One in relation to Patient D are as follows: Particulars 11 – 12 11. From 17 December 2018 to 14 April 2020, on the dates and in the quantities as set out in Annexure D, the practitioner inappropriately prescribed the Schedule 4D drugs, Diazepam, Oxazepam and Temazepam, to Patient D and in doing so, failed to: a. recognise drug seeking behaviour by Patient D; b. undertake an appropriate assessment of Patient D before prescribing the drugs to him, including: i. obtaining the relevant medical history including mental health history and risk assessment; ii. discussing the use and misuse, possible side effects and interactions of the drug with Patient D. 12. From 17 December 2018 to 14 April 2020, on the dates and in the quantities as set out in Annexure D, the practitioner prescribed the Schedule 4D drugs, Diazepam, Oxazepam and Temazepam, to Patient D, which: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; b. otherwise was not clinically appropriate in the patient's circumstances, having regard to the purpose for which it was prescribed, the quantities prescribed, dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. In his Reply, Dr Allen admits particulars 11 and 12 and says that there are insufficient records to support the totality of prescribing set out in Schedule D. 2. Particulars 11 and 12 relate to Dr Allen's prescribing of diazepam, oxazepam and temazepam to Patient D from 17 December 2018 to 14 April 2020. Annexure D to the Complaint alleges that Dr Allen prescribed diazepam 5mg to Patient D on 12 occasions in the relevant period, on 17 and 28 December 2018, 17 January 2019, 9 and 26 March 2019, and 10, 16, 18, 24, 26 and 27 April 2019. Variously, Dr Allen's clinical records (Exhibit A1 tab 17), the PBS and Medicare data (Exhibit A2) and the dispensing data (Exhibit A1 Tab 13) substantiate the prescribing alleged. Over the period alleged, Dr Allen prescribed, for Patient D, 500 doses of diazepam. We find that the allegations in particular 11 with respect to the prescribing of diazepam have been proven. 3. Annexure D to the Complaint alleges that Dr Allen prescribed oxazepam 30mg to Patient D on six occasions, being 30 August 2019, 10, 13 and 17 September 2019, 6 November 2019 and 14 April 2020. Variously, Dr Allen's clinical records and the dispensing data substantiate the prescribing of oxazepam alleged. We find that the allegations in particular 11 with respect to the prescribing of oxazepam have been proven. 4. Annexure D to the Complaint alleges that Dr Allen prescribed temazepam 10mg to Patient D on three occasions, being 13 November 2019, 21 December 2019 and 30 December 2019. The allegations in relation to 13 November 2019 and 30 December 2019 are substantiated by the dispensing data (Exhibit A1 Tab 12) and, in the case of 30 December 2019, Dr Allen's records (Exhibit A1 Tab 17). The allegation with respect to 21 December 2019 is supported by the PBS data provided by Services Australia (Exhibit A2 p 30). We find that the allegations in particular 11 with respect to the prescribing of temazepam have been proven. 5. Dr Allen had a personal relationship with Patient D throughout the time the subject of the Complaint. Ms Yang, in her report, noted that Dr Allen's prescribing records for Patient D were not complete. They omitted the prescriptions of diazepam 5mg tablets given on 17 December 2018, 17 January 2019 and 10 April 2019, the prescriptions for oxazepam 30mg tablets given on 30 August 2019, 10 September 2019, 13 September 2019 and 6 November 2019 and prescriptions for Panadeine Forte given on 3 December 2018, 10 December 2018, 15 February 2019, 6 June 2019, 16 July 2019 and 24 March 2020. Dr Allen's clinical notes omitted to record the prescribing of alprazolam 2mg, tramadol, temazepam and gabapentin. 6. Ms Yang noted that Dr Allen gave Patient D four different benzodiazepines. The reason for the prescribing of multiple benzodiazepines does not appear in Dr Allen's clinical notes. Ms Yang said that this prescribing was not in conformity with the recognised therapeutic standard of what is appropriate. Ms Yang noted that the clinical notes do contain some information about the prescribing of oxazepam. 7. Dr Jalota, in her report, said that Dr Allen's conduct with respect to Patient D was significantly below the appropriate standard of care in a number of ways. Dr Jalota noted that diazepam was prescribed for anxiety, but said that it should only have been used short term, for two to four weeks, and not over many months. The starting dose should have been 5mg. Dr Jalota said that an appropriate assessment should have included a detailed mental health history, a risk stratification for suicide and a drug and alcohol history. Also, a detailed discussion about the use and misuse of benzodiazepines should have been included as part of the assessment. Possible side effects and interactions should have been discussed and documented. 8. Dr Jalota said that the prescription of diazepam for anxiety was significantly below the appropriate standard of care. The first line therapy for anxiety is cognitive behaviour therapy followed by SNRI/SSRIs (serotonin and norepinephrine reuptake inhibitors /selective serotonin reuptake inhibitors). 9. Dr Jalota said that oxazepam, which was prescribed for anxiety and insomnia, should only be used short term for anxiety and stopped as soon as possible. It was prescribed for too long, and the starting dose was too high. Again, a proper history should have been taken, and a discussion about use and misuse, side effects and interactions should have occurred and been documented. 10. Dr Jalota said that Dr Allen's consulting notes did not record a reason for the prescription of temazepam. 11. Dr Jalota said, in her report, that prescribing multiple benzodiazepines could have caused multiple side effects, including drowsiness, oversedation, light-headedness, hypersalivation, ataxia, slurred speech, dependence, blurred vision and impaired motor skills. 12. Dr Jalota said that Dr Allen should have regarded Patient D as drug dependent, and that assessment should have been made when Patient D presented multiple times for scripts of benzodiazepines (temazepam/oxazepam). Dr Allen should also have referred Patient D to a specialist psychiatrist and a specialist in addiction medicine at an early stage. 13. Particulars 11 and 12 of Complaint One have been proven. Patient E 1. The allegations in Complaint One in relation to Patient E are as follows: Particulars 13 – 15 13. From 27 February 2018 to 24 June 2020, on the dates and in the quantities set out in Annexure E, the practitioner inappropriately prescribed the Schedule 4D drug Diazepam to Patient E and in doing so, failed to: a. recognise drug seeking behaviour by Patient E; b. undertake an appropriate assessment of Patient E before prescribing the drugs to him, including: i. obtaining the relevant medical history; ii. a comprehensive physical examination including X-ray scans; iii. discussing the use and misuse, possible side effects and interactions of the drug with Patient E. 14. From 27 February 2018 to 24 June 2020, on the dates and in the quantities as set out in Annexure E, the practitioner prescribed the Schedule 4D drug Diazepam and Schedule 4 drug Paracetamol + Codeine to Patient E which: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clauses 34 and/or 79 of the PTGR; b. otherwise was not clinically appropriate in the patient's circumstances, having regard to the purpose for which it was prescribed, the quantities prescribed, dosages prescribed and the frequency and duration of prescribing by the practitioner. 15. From 21 January 2019 to 28 April 2020, on the dates and in the quantities set out in Annexure E, the practitioner prescribed drugs that are benzodiazepines, namely Diazepam, in combination with, or over the same period of time, as Paracetamol + Codeine. 1. In his Reply, Dr Allen admits particulars 13 and 14. Dr Allen admits particular 15 for the period of 21 January 2019 to 13 April 2020. Dr Allen pleaded that there are insufficient records "to support the totality of the prescribing set out in Annexure E". 2. Annexure E to the Complaint sets out 47 occasions upon which Dr Allen allegedly prescribed diazepam 5mg to Patient E in the period of time pleaded. There is evidence to substantiate the allegations, variously, in Dr Allen's clinical records (Exhibit A1 Tab 18) and the dispensing data (see Exhibit A1 Tab 12). We find that diazepam was prescribed to Patient E by Dr Allen as alleged. 3. Annexure E to the Complaint sets out 6 occasions on which Dr Allen allegedly prescribed paracetamol + codeine to Patient E. There is evidence to support the allegations as to the prescribing of paracetamol + codeine on the dates alleged in Annexure E, variously, in the dispensing data (see Exhibit A1 Tab 12, and in Dr Allen's clinical records (see Exhibit A1 Tab 18). We find that paracetamol + codeine was prescribed to Patient E by Dr Allen as alleged. 4. On the 6 occasions upon which Dr Allen prescribed paracetamol + codeine to Patient E, he also prescribed diazepam, which is a benzodiazepine. 5. Ms Yang, in her report, noted that Patient E had been undergoing treatment for opioid dependence on the NSW Opioid Treatment Program (OTP), most recently since 10 May 2018, but prior to that from 1 February 2000 to 9 May 2018, intermittently. Dr Allen was unaware of this. 6. Ms Yang noted that Dr Allen issued ongoing prescriptions to Patient E for diazepam 5mg tablets for anxiety. 7. The clinical notes show that another doctor at the practice Dr Allen consulted from refused to prescribe diazepam to Patient E on 23 March 2018 on the basis that he was drug-seeking. 8. Ms Yang noted that Dr Allen's prescribing records for Patient E are incomplete. 9. Dr Jalota, in her report, says that Dr Allen's conduct in relation to Patient E was significantly below the appropriate standard of care. Dr Allen ought to have taken a mental health history and discussed the use, misuse and side effects of benzodiazepines, in the same way as he should have done with Patients C and D. He should not have prescribed diazepam for a period beyond four weeks. The quantity of diazepam prescribed by Dr Allen to Patient E was very high. 10. Dr Jalota said that Dr Allen should have investigated Patient E's reported symptoms by taking a detailed history, examining the patient and possibly ordering a chest X-ray to investigate a possible rib fracture to explain pain. He should have discussed the possible interactions of Paracetamol + Codeine with diazepam. The effect on motor skills, including driving, should have been discussed. Dr Jalota noted that the multiple prescribing could have led to the side effects described above for Patients C and D. Again, Dr Allen should have recognised this patient as drug dependent when he presented multiple times for benzodiazepines. He should have referred Patient E to a psychiatrist and an addiction specialist. 11. Particulars 13 to 15 of Complaint One have been proven. 12. The definition of "unsatisfactory professional conduct" in s 139B(1)(a) of the National Law provides, relevantly for Complaint One: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. All of the prescribing alleged in Complaint One demonstrates that the knowledge and judgment of Dr Allen, and the care exercised by him in the practice of medicine, was significantly below the standard expected of a practitioner of an equivalent level of training or experience, and was thus unsatisfactory professional conduct as defined in s 139B of the National Law. 2. Prescribing contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 was also improper and unethical conduct, and so was the prescribing which Dr Allen undertook without a proper authority under s 28A or s 29 of the Poisons and Therapeutic Goods Act 1966. 3. Complaint One has been established. Complaint Two 1. Complaint Two alleges that Dr Allen is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law, in that he contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 ('the National Regulation') by failing to make and keep adequate records in relation to Patient A, including failing to keep a record of a detailed clinical history, examination and clinical indication for prescribing. 2. The National Regulation provides, in reg 6: 6 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. (2) A contravention of subclause (1) by a medical practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. 1. The National Regulation provides, in Schedule 4, clause 1: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following— (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient— (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to a medical treatment or other medical service proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 1. In his Reply, Dr Allen admits the conduct alleged in Complaint Two, and admits that it amounts to unsatisfactory professional conduct. 2. For the reasons set out above at [26], [27], [40]-[43], [72], [73], [82]-[84], [87] and [99]-[101] we find Dr Allen guilty in relation to the allegations in Complaint Two. Complaint Three 1. Complaint Three alleges that Dr Allen is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law, in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. The conduct alleged is that, from 3 December 2018 to 19 June 2020, Dr Allen failed to maintain proper professional boundaries by providing treatment to Patient D, with whom he was in a close personal relationship, and with whom he lived. This is a breach of the Medical Board of Australia 'Good Medical Practice: A code of conduct for Doctors in Australia' (March 2014) ('the Code') and the Medical Council of NSW 'Guidelines for self-treatment and treating family members' (December 2014) ('the Guidelines'). 2. The Code says, at 3.14: 3.14 Personal relationships Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues. 1. The Guidelines adopt what is said in the Code and says the following, to supplement the Code, on p.2: Wherever possible, medical practitioners should not treat themselves and members of their family, because in these circumstances: • Professional objectivity may be compromised and their judgment may be influenced by the nature of their relationship with the patient; • Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination; • The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination when the medical practitioner is a family member; • Patient autonomy may be compromised when a medical practitioner treats a member of their family; • The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family. For the same reasons, the Council includes in this guideline the issuing of certificates by medical practitioners for members of their family, including medical certificates, death certificates and cremation documents. The preparation of such documents for family members carries an inherent risk of compromising 1. In his Reply, Dr Allen admits the conduct alleged in Complaint Three, and admits that it amounts to unsatisfactory professional conduct. We agree that the conduct alleged and admitted amounts to unsatisfactory professional conduct. 2. Dr Allen concedes that he was in a personal relationship with Patient D, and was living with Patient D for most, if not all, of the time that he was treating him and prescribing for him. 3. We find Dr Allen guilty in relation to the allegations in Complaint Three. Complaint Four 1. Complaint Four alleges that Dr Allen is guilty of unsatisfactory professional conduct under s 139B(1)(c) in that he has contravened conditions of his registration. 2. Particular 1 of Complaint Four alleges that Dr Allen contravened condition 11 of his registration by testing positive to alcohol on his urinary EtG testing on 8 specified dates between 22 March 2021 and 10 June 2021, being 22 March 2021, 29 March 2021, 12 April 2021, 11 May 2021, 31 May 2021, 3 June 2021, 7 June 2021 and 10 June 2021. 3. Condition 11 of Dr Allen's registration was imposed on 7 December 2017 by the Medical Council of New South Wales. Condition 11 is as follows: To abstain completely from the consumption of alcohol. 1. Dr Allen tested positive to alcohol on the 8 days between 22 March 2021 and 10 June 2021 listed above (see Exhibit A1 Tabs 48-57). His records show that he worked at the practice on those days. Dr Allen admitted, in oral evidence, that he consumed alcohol on, or a few days prior to, each of those days. 2. In his Reply, Dr Allen admits the facts alleged in particular 1 of Complaint Four, and admits that his conduct amounts to unsatisfactory professional conduct. 3. The definition of unsatisfactory professional conduct in s 139B of the National Law relevantly includes the following: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … 1. We find Dr Allen guilty of the allegations in Complaint Four. Complaint Five 1. Complaint Five alleges that Dr Allen is guilty of professional misconduct. It is alleged that professional misconduct has been committed, either because Dr Allen has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Allen's registration, or because Dr Allen has engaged in more than one instance of unsatisfactory professional conduct, and when those instances are considered together, they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of Dr Allen's registration, or because both of those circumstances have arisen. 2. In his Reply, in response to Complaint Five, Dr Allen admits professional misconduct. 3. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said: 19. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. [14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, [15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, [16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [18] 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. We determine that the conduct which we have found to have been proven in relation to Complaint One is sufficiently serious, by itself, to justify the suspension or cancellation of Dr Allen's registration. The prescribing of opioids without proper cause, in excessive quantities, and for periods of time far in excess of the appropriate standard, had the potential to put at risk the life and health of the patients and created the possibility that opioids may circulate in the community without medical supervision. Patients A and C were prescribed opioids and benzodiazepines in combination, which created an increased risk of harm to the patients. Patient E was prescribed a benzodiazepine in combination with paracetamol + codeine, which also created a risk of harm. Dr Allen did not have the authority required under s 28A and s 29 of the Poisons and Therapeutic Goods Act 1966 to prescribe Type A and Type B drugs of addiction (see regs 122 and 123 of the Poisons and Therapeutic Goods Regulation 2008). 2. It follows that all of the complaints, together, are sufficiently serious to justify suspension or cancellation of Dr Allen's registration. We need not consider whether Complaints 2, 3 and 4, individually, amount to professional misconduct. Complaint Six 1. Complaint Six says: Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medicine. Particulars of Complaint Six 1. The practitioner suffers from the following conditions and disorders: a. Post-traumatic stress disorder; b. Substance abuse disorder including alcohol Dependence [sic]. 1. In his Reply, Dr Allen responded to Complaint Six in the following way: 25. The respondent admits that he has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including post-traumatic stress disorder and substance abuse disorder including alcohol dependence) but does not admit that this impairment detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medicine. 26. The respondent admits particular 1. 1. Impairment is defined in s 5 of the National Law in the following way: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student, the student's capacity to undertake clinical training— (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. 1. In his statement, Dr Allen concedes that he suffers from post-traumatic stress disorder, depression and alcohol use disorder (see Exhibit R1, Tab 2, paragraph 12). Dr Diamond, a psychiatrist, confirms this (see Exhibit A1 Tabs 63–67 and Exhibit R1 Tabs 5 and 9). Dr Samuels, a psychiatrist, also confirms it (see Exhibit R1 Tab 3). 2. Dr Allen admits that he is currently impaired. The relevant time in relation to which the issue of impairment is to be assessed is the time of the hearing before us (see Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 at [11] per Beazley JA). The report of Dr Samuels, dated 15 December 2022 (see Exhibit R1 Tab 3), and the most recent report of Dr Diamond, dated 10 May 2021, confirm that the impairments remained, as at the date of those reports. There is no evidence that they have subsequently been successfully addressed. 3. We have taken into account the whole of Dr Samuels' report. Relevantly to the issue of Dr Allen's current impairments, and their impacts upon his ability to practise medicine, Dr Samuels, in his report, says: 149. Dr Allen should not return to medical practice until he is cleared to do so by his treating practitioners. 150. I think it is imperative that he engages more consistently with a psychiatrist who had Drug & Alcohol expertise. Dr Allen still has residual problematic stress symptoms and I think it is imperative that he has ongoing and regular contact with his psychiatrist Dr Altman and I do not believe that at this point three monthly reviews are sufficient. I also think he should be having more regular contact with his psychologist Louise Morrow. He probably should be attending a support group although he does not find this to be terribly beneficial and this would be best advised by his treating practitioners. 151. Dr Allen should continue to take medications including escitalopram and agomelatine as prescribed. 152. In my view, the major impediment in regard to Dr Allen returning to medical practice is the issue of abstinence and if he is to return to practice this will need to be a pre-requisite. He does have some insight into his problems of alcohol misuse but is continuing to drink, albeit at a lesser level, but I do not think this is optimal and heightens his risk of relapse. He does not seem to be entirely clear how he can achieve total abstinence, and this is something he will need to explore with his treating practitioners. If he does return to clinical practice he will need to be breathalysed before and after shifts and on his return at any time he leaves the premises. If he is having regular ABT testing there probably is no need for urine EtG testing but he certainly should have quarterly hair testing. … 156. Dr Allen feels the restriction of his s 4D and s 8 rights are protective in regard to demanding, drug seeking patients. However there are likely to be other clinical situations where he struggles to set limits and create personal boundaries. He probably should undertake some continuing medical education in regard to maintenance of professional boundaries when dealing with demanding and challenging patients. 1. There is no evidence that Dr Allen's treating practitioners consider that he is presently fit to practise. Dr Allen said, in both his statement and his evidence, that Dr Altman is his treating psychiatrist. However, from a letter from Dr Altman dated 10 February 2023, it is apparent that, as at the time of the hearing before us, Dr Allen had last seen him on 28 June 2022. It was apparent from a letter dated 6 February 2023 (Exhibit R3) that Dr Allen's most recent consultation with Ms Morrow, his psychologist, was on 20 April 2022. 2. In evidence, Dr Allen admitted that he had consumed alcohol 16 days prior to the hearing. He admitted, in his statement, that he suffers from alcohol dependence. Dr Samuels, in his oral evidence, said that Dr Allen was not, at the time of hearing, ready to resume practice and should have at least 6 months of demonstrated abstinence from alcohol, which is likely to take at least a year to establish, before he could demonstrate that he was again fit to practise [transcript p 32]. 3. The risk to patients posed by a general practitioner who is suffering from Dr Allen's impairments is, to some extent, illustrated by the events which led to Complaints One to Four. The distraction of dealing with post-traumatic stress disorder and substance use disorder has been demonstrated, in Dr Allen's case, over several years, to contribute to less than diligent history taking and record keeping and a disinclination or inability to expend the effort required to establish proper professional boundaries. It also contributed to Dr Allen's failure to resist requests for the prescription of high risk medications, in circumstances where proper assessment and diagnosis would have resulted in the formation of an opinion that the prescription of those medications was not clinically indicated, or that excessive quantities were being requested. Further, it contributed to Dr Allen's carelessness in relation to complying with both the Poisons and Therapeutic Goods Act 1966 and the conditions imposed upon his registration. We find that Dr Allen is currently impaired in a manner which affects his capacity to practise medicine. Complaint Six has been established. Complaint Seven 1. Complaint Seven says: Pursuant so s 144(c) of the National Law, the practitioner is not competent to practise medicine in that he lacks the physical capacity, mental capacity, knowledge and skill to practise as a medical practitioner. Particulars of Complaint Seven 1. The Particulars of Complaint Six are repeated and relied upon. 2. The practitioner's impairment is of a sufficient nature and degree to impair the practitioner's physical and mental capacity to practise the profession of medicine. 1. In his Reply, Dr Allen responded to Complaint Seven in the following way: 27. The respondent does not admit that he is not competent to practise medicine in that he lacks the physical capacity, mental capacity, knowledge and skill to practise as a medical practitioner. 28. The respondent admits particular 1. 29 The respondent does not admit particular 2. 1. The National Law, in s 144(c) says: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. 1. The National Law does not define or describe what "not competent" means. 2. In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[170] Sackville AJA said (with Giles JA and Young JA agreeing): 168 The appellant's submission on the question of impairment overlooked the definitions of "impairment" and "competence to practise medicine" in the Dictionary to the Act. The definition of "impairment" includes any "condition or disorder which detrimentally affects or is likely to detrimentally affect" the practitioner's mental capacity to practise medicine (cl 3). A person is "competent to practise medicine" only if he or she has, relevantly, sufficient mental capacity to practise medicine and has sufficient communication skills to do so (cl 2). There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act. … 170 The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. 1. The Act referred to in Lindsay was the Medical Practice Act 1992 (Repealed), which contained a definition of 'competence to practise medicine' in clause 2 of the Dictionary to the Act. Whilst the National Law contains no such definitions, we consider that the definition in the previous legislation is apt for the concept of competence in this case, and the passage set out at [143] has application in the present case. 2. In Tung v Health Care Complaints Commission [2011] NSWCA 219, at [56] and [62], Giles JA, with whom Campbell JA and Tobias AJA agreed, said: 56. There is some overlap between the two grounds for complaint in s 39 of the Act, being lack of competence on the one hand and impairment on the other. The definitions of these terms have been set out at [20] above. A physical or mental impairment, disability, condition or disorder which detrimentally affects the person's physical or mental capacity to practice medicine may mean that the person does not have sufficient physical capacity, mental capacity or skill to practice medicine. But that is not necessarily so, and particularly it is not necessarily so in the case of a physical or mental impairment, disability, condition or disorder which is likely to detrimentally affect the person's physical or mental capacity to practice medicine…. … 62. On the contrary, given the futurity in the Tribunal's finding in my view it was not open to the Tribunal to find that she was not competent to practice medicine. No doubt there is room for some futurity in the definition of competence to practice medicine. It is in terms of present capacity, but practice of medicine is a continuum and a practitioner whose physical or mental deterioration will inevitably and soon make him or her incapable could be said to lack sufficient physical or mental capacity to practice medicine. That is not the present case. The finding, understood in the light of the reasons as a whole, was one of likelihood at an indefinite future time. It could not properly be found that the appellant did not presently have sufficient mental capacity or other competence to practice medicine. 1. The time at which competence must be assessed is the present time. Circumstances will dictate whether a present lack of competence necessarily denotes a future lack of competence. For example, some practitioners cease to be competent to practise medicine on account of a progressive illness, such as vascular dementia, which brings with it an expectation that competence will not be able to be recovered. Other illnesses or accidents may bring about a present lack of competence with the prospect that competence may be regained at some future time, perhaps after treatment. There is no reason to treat the words "not competent to practice", in s 144 as necessarily connoting a permanent state of affairs. 2. Whilst impairment is a different concept from competency, nevertheless, there is considerable overlap between Complaint 6 and Complaint 7. Dr Allen's impairments of post-traumatic stress disorder and substance use disorder underlie, to some extent, his current lack of mental capacity to practise medicine and his failure to apply proper knowledge and skill in his history taking, record keeping and treatment of patients, including prescribing. These tasks all require concentration and diligence, which Dr Allen demonstrated that he could not adequately apply. His prescribing to Patients A to E shows that, at the time, Dr Allen was unable to exercise the judgment and interpersonal skills expected of a general practitioner when dealing with a patient who is requesting drugs of addiction. There is no basis for thinking that any change has taken place in relation to those issues. We note that the improper prescribing the subject of the Complaint took place from February 2018 to June 2020. In his report of 6 February 2021, Dr Diamond says: I wondered whether the extent of the prescriptions that were investigated by the Pharmaceutical Regulatory Unit had arisen because of his reluctance to face conflict and could be understood in terms of conflict-avoidant behaviour consistent with the vulnerabilities associated with Post Traumatic Stress Disorder. 1. We find that Dr Allen is presently not competent to practise medicine. However, it is possible that he will recover competence in the event that he makes significant progress in addressing his post-traumatic stress disorder and his substance use disorder with the assistance of a treating psychiatrist and psychologist. 2. In terms of knowledge and skill, it is clear that Dr Allen needs to engage in further training with respect to patient assessment and care, history taking and record keeping, the proper approach to prescribing, establishing and maintaining professional boundaries, prescribing for and treating people with whom he is in a personal relationship, and the requirements imposed upon medical practitioner by the National Law and the Poisons and Therapeutic Goods Act 1966. We acknowledge the further education already undertaken by Dr Allen and set out at paragraphs 103-106 of his statement. 3. We take into account the views of Dr Barnes, a general practitioner, from his letter of 30 June 2021 (Exhibit A1 Tab 47A). Dr Barnes praised Dr Allen as a knowledgeable and compassionate general practitioner. It is not clear, from Dr Barnes letter, that he had any information about the events the subject of Complaints One, Two and Three. Dr Barnes clearly did know about the breach of condition 11 of Dr Allen's registration. 4. We also take into account the letter from Dr Heeps, clinical psychologist, dated 30 June 2021. Again, it is evident that Dr Heeps was aware of the issue concerning alcohol, but there is no indication that he was aware of the issues in Complaints One, Two and Three. We acknowledge, however, that Dr Heeps held the view that Dr Allen brings many positive qualities to the practice of medicine, such as compassion and understanding. Disciplinary Orders 1. The disciplinary orders which may be made by the Tribunal are set out in Subdivision 6 of Division 3 of the National Law, and we bear in mind all of the possible disciplinary orders available to us. Section 149C of the National Law sets out the orders which are most appropriate for consideration in this matter. 2. The National Law provides, in s 149C: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied— (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note— Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. We have found that Dr Allen is impaired, is not presently competent to practise medicine and has committed unsatisfactory professional conduct and professional misconduct, and, in considering the disciplinary orders to be made, we take into account our reasons, set out above, for those findings. 2. The guiding principle of the National Law is that the health and safety of the public must be the paramount consideration, and we bear this in mind and apply it. 3. In considering the disciplinary orders to be imposed, we take into account those aspects of Dr Allen's personal history recited in the report of Dr Samuels dated 15 December 2022. We also take into account Dr Allen's statement dated 30 January 2023 [Exhibit R1 Tab 2], and his oral evidence, particularly in relation to his employment with the Royal Australian Navy from 2002 to 2005 and his time in Iraq from September 2002 to July 2003. We take into account paragraph 5 of Dr Allen's statement, which says the following: 5. I was deeply traumatised by my work in Iraq and upon return to Australia was declared medically unfit to return to active duty. I spent the rest of my time in the Navy as the doctor in charge of the submarine unit, unfortunately, however, I found this work also to be emotionally distressing. 1. We have read all of the material in Dr Allen's statement regarding the circumstances which led to him prescribing in the manner that he prescribed for Patients A to E. Whilst those circumstances go some way towards explaining how it was that Dr Allen came to prescribe as he did, it is clear to us that a general practitioner who was competent to practise would have realised, at an early stage, that Patients A to E were requesting high risk medications, such as opioids and benzodiazepines, when a proper assessment would have led to a conclusion that that the prescription of the drugs requested, in the quantities requested, was not clinically indicated, and would have undertaken an assessment to ascertain whether opioid or benzodiazepine use disorder was present. A competent general practitioner would have taken other steps if the patient continued to consult with them, such as providing a referral to a drug and alcohol specialist. Dr Allen, however, did not come to that realisation and continued to prescribe. In 2019, he prescribed very large quantities of fentanyl and oxycodone to Patient A; quantities well in excess of what a single patient could require for a clinical reason. The doses prescribed had the potential to put Patient A's health and life at risk. If Patient A was on-selling or otherwise sharing the drugs prescribed, then the health and lives of members of the public were put at risk. The same is true, to varying extents, in relation to the drugs of dependence that Dr Allen prescribed to Patients B, C, D and E. 2. We take into account all of Dr Allen's previous interactions with his professional regulator, both in New South Wales, and in Western Australia, which are set out in detail in the written submissions of the HCCC. We take into account that Dr Allen has not always been honest and frank with s 150 delegates and the Impaired Registrants Panel (IRP). He misled the IRP and Dr Diamond with respect to whether he was drinking alcohol from time to time, and he failed to co-operate fully with officers of the Pharmaceutical Regulatory Unit ('PRU'), declining to be interviewed. Dr Allen stopped prescribing for Patient C when the PRU requested Patient C's records, but continued to prescribe for Patient E, even after providing Patient E's records to the PRU. 3. It was submitted, on Dr Allen's behalf, that the appropriate order would be the suspension of Dr Allen's registration for 6 or 12 months, together with the imposition of a condition that he may not practise medicine, so that the Medical Council of New South Wales could supervise him in a health program. It was said that the condition not to practise could remain after the end of the suspension, in the event that Dr Allen was not fit to practise at the end of the period of suspension. 4. The HCCC opposed the imposition of a suspension and a condition not to practise. It was submitted that the suggestion amounted to a de facto cancellation. It was submitted that the Medical Council does not supervise practitioners who are not practising, and that the Tribunal should not seek to intervene in the Council's decision as to who ought to have a place in a health program. 5. We agree with the HCCC that it would be undesirable for the Tribunal to seek to make a direction or a recommendation that a particular medical practitioner ought to be given a place in a health program. The Council administers such programs, not the Tribunal, and the Tribunal is not in a position to assess the competing claims for places in the health programs. 6. We consider that the appropriate disciplinary order in this matter is the cancellation of Dr Allen's registration. It was submitted, by the HCCC, that a period of 2 years before Dr Allen may seek a review under Division 8 of the National Law, ought to be set. It was submitted that 2 years is the period required for Dr Allen to demonstrate abstinence from alcohol and to engage with his treating practitioners to address his impairments. 7. It was submitted, on behalf of Dr Allen, that, were the cancellation of Dr Allen's registration to be the order made by the Tribunal, a period of one year before Dr Allen could seek a review, under Division 8 of the National Law, would be sufficient. It was submitted that a period of two years may be crushing. 8. We have concluded that it may be possible, if Dr Allen engages immediately with his psychiatrist and psychologist, and is honest and frank with them, and continues that engagement, and if Dr Allen engages genuinely in professional development in the areas we have identified in [149] above, that Dr Allen may be able to address his impairments, his present lack of capacity to practise medicine, and the deficiencies in his skills and knowledge, within a year. We will impose a period of one year prior to the seeking of a review under Division 8 of the National Law. Costs 1. As a general rule, costs in a matter of this kind follow the event. Dr Allen did not oppose the making of an order for costs against him. Orders 1. We make the following orders: 1. Dr Allen's registration as a medical practitioner is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. A non-review period of one year, from the date of these orders, is imposed upon Dr Allen pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW). 3. Dr Allen is to pay the costs of the Health Care Complaints Commission, to be 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: 31 May 2023