Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Morsingh [2023] NSWCATOD 118 Hearing dates: 19 – 21 July 2023 Date of orders: 04 August 2023 Decision date: 04 August 2023 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr S Cowap, Senior Member Dr J Fogarty, Senior Member D Telford, General Member Decision: (1) Complaint 1.2 is not proven. (2) Complaint 1.3 is not proven. (3) Complaint 1.4 is proven in respect of the failure to obtain an authority to prescribe alprazolam to Patient A between April 2019 and November 2019. (4) Complaint 1.4 is not proven in respect to the failure to obtain an authority to prescribe oxycodone to Patient A. (5) Complaint 1.5 is not proven. (6) Complaint 1.6(d) is not proven. (7) Complaint 1.7 is not proven. (8) Complaint 1.8 is proven. (9) Complaint 1.9 is proven. (10) Complaint 1.10(a) is not proven. (11) Complaint 1.10(b) and (c) are not proven. (12) Complaint 1.11(a), (b) and (c) are not proven. (13) Complaint 1.11(d) is not proven. (14) Complaint 1.12 is proven. (15) Complaint 1.13 is proven. (16) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the medical history of any patient in evidence before the Tribunal is prohibited. Catchwords: OCCUPATIONS – medical practitioners – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – prescription of restricted substances and drugs of addiction – whether conduct that demonstrates knowledge, skill or judgment possessed, or care exercised, by practitioner is significantly below standard reasonably expected Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 3A, 139B(1)(a), 139E, 149A, 149C Poisons and Therapeutic Goods Act 1966 (NSW), ss 8, 27, 28 Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Health Care Complaints Commission v Brittain [2019] NSWCATOD 161 Health Care Complaints Commission v Qadri [2017] NSWCATOD 155 King v Health Care Complaints Commission [2011] NSWCA 353 O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 Texts Cited: Good Medical Practice: A Code of Conduct for Doctors in Australia (Medical Board of Australia, March 2014) Prescribing drugs of dependence in general practice, Part C2: The role of opioids in pain management (Royal Australian College of General Practitioners, October 2017) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Raymond Morsingh (Respondent) Representation: Counsel: S McCarthy (Applicant) A Rizk (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Memcorp Lawyers (Respondent) File Number(s): 2022/00327715 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the patients referred to as Patient A, Patient B, Patient C, Patient D, Patient E and Patient F, in the Complaint forming part of the Application in this matter is prohibited. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the medical history of any patient in evidence before the Tribunal is prohibited. [THIS DECISION HAS BEEN AMENDED] REASONS FOR DECISION Overview 1. The Health Care Complaints Commission (the Commission) has applied to the Tribunal for a finding that Dr Raymond Morsingh is guilty of unsatisfactory professional conduct and professional misconduct. The application is brought under the Health Practitioner Regulation National Law (NSW) (the National Law). The Complaint concerns Dr Morsingh's prescribing of so called Schedule 8 drugs, Schedule 4B and 4D drugs and other central nervous system (CNS) acting drugs to six patients. 2. In this first stage of the proceedings, we will decide whether Dr Morsingh's conduct amounts to unsatisfactory professional conduct. Dr Morsingh has admitted engaging in unsatisfactory professional conduct in relation to Patient A (Complaint 1.4 for the prescribing of oxycodone), Patient C (Complaint 1.9) and Patient F (Complaint 1.13). 3. After the evidence had been presented, the Health Care Complaints Commission withdrew Complaint 1.1(a) and (b), and Complaint 1.6(a), (b) and (c). 4. We have concluded that Dr Morsingh engaged in unsatisfactory professional conduct in relation to Complaint 1.4 (prescribing of alprazolam without the necessary authority to do so), Complaint 1.8, Complaint 1.9, Complaint 1.12 and Complaint 1.13. 5. In the second stage of the proceedings, we will decide whether that conduct, when taken together, amounts to professional misconduct. 6. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. The onus is on the Commission to prove its case "on the balance of probabilities". While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. 7. The evidence for the Commission comprises two volumes of material. That material includes the clinical notes of each of the patients, a report from an expert witness, Dr Emery Kertesz, dated 21 December 2021, and material relating to the so-called "section 150" proceedings before the Medical Council of New South Wales. Dr Morsingh filed a response to the application and a statement dated 21 June 2023. Dr Kertesz and Dr Morsingh gave oral evidence and were cross-examined. 8. The information in the medical history of the patients is personal health information. In relation to that material, we make a non-publication order under s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). Definition of unsatisfactory professional conduct 1. Complaint One is that Dr Morsingh has engaged in unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law in respect of six patients who we will call Patients A, B, C, D, E and F. Complaint One is as follows: "[The practitioner] is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 1. When deciding whether Dr Morsingh is guilty of unsatisfactory professional conduct under this provision, we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons, we refer to that standard as the "relevant" standard. Dr Morsingh's training and experience is extensive. He was first registered as a medical practitioner in New South Wales in 1994 and has worked as a GP since 1995. In 2002, he established the Wentworthville Medical Centre and was the director of that Centre from 2002 to 2018. 2. The relevant standard is also informed by publications including Good Medical Practice: A Code of Conduct for Doctors in Australia (Medical Board of Australia, March 2014); NSW Health, PSB document entitled 'Responsible opioid prescribing identifying and handling drug-seeking patients' (December 2008) and Guidelines - Recognising and Managing drug dependent persons notes for medical practitioners (March 2015_. Complaint One – unsatisfactory professional conduct – Patients A, B, C, D, E and F Patient A - Complaint 1.2 – prescribing alprazolam without appropriately documenting the quantity "Between 28 April 2018 and 7 November 2019, the practitioner inappropriately prescribed Schedule 8 drug of addiction, Alprazolam in circumstances where he failed to appropriately document: (a) the quantity prescribed; (b) the number of repeats prescribed." 1. Alprazolam is a benzodiazepine used for short-term relief of anxiety or for treating panic disorders. It is classified as a "drug of addiction" under Schedule 8 to the Poisons List, which is proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) (Poisons Act). We will refer to the drugs listed in Schedule 8, including alprazolam, as "S8" drugs. What does Complaint 1.2 allege? 1. Dr Morsingh submits that to be satisfied that he is guilty of unsatisfactory professional conduct under this ground, the Commission must prove both that the prescribing of alprazolam itself constitutes unsatisfactory professional conduct and that any failure to document the quantity prescribed constitutes unsatisfactory professional conduct. That submission is based on separating the complaint into two parts. Firstly, the statement that Dr Morsingh inappropriately prescribed alprazolam, and secondly that when prescribing, he failed to appropriately document the quantity and the number of repeats. That is not a fair reading of this part of the Complaint. The phrase "in circumstances where" links the prescribing with the circumstances listed in Complaint 1.2(a) and (b). There is only one type of conduct identified, namely prescribing alprazolam in circumstances where the quantity and number of repeats were not documented. That conduct is said to amount to unsatisfactory professional conduct. Discussion and findings 1. Dr Morsingh denies engaging in unsatisfactory professional conduct in the manner alleged. 2. In his expert report, Dr Kertesz expressed the view that Dr Morsingh's prescribing of alprazolam to Patient A "given the unknowns of that prescribing (quantities prescribed and repeats issued)" is significantly below the relevant standard. 3. The medical records provided by Dr Morsingh to the Commission do not show the quantities of the drugs prescribed. According to the Commission, it follows that Dr Morsingh did not record those details. 4. Dr Morsingh's evidence is that at all times the quantity and repeats prescribed were appropriately documented on the computer software used by the practice, known as "Medical Director". He states that the software records every script that has been generated, showing the quantity of a drug that was prescribed and the number of repeats for the drug that was prescribed. Dr Morsingh states that when the medical records department of the practice where he was working provided the records, that information may not have been generated, but it is an intrinsic part of the software. 5. We are not satisfied that the Commission has proved the factual basis for Complaint 1.2. Dr Morsingh states that he did record the quantity of the drug that was prescribed and the number of repeats prescribed. Dr Morsingh's evidence on this topic was not the subject of any real challenge in cross-examination. It is plausible that those details are missing because that part of the record was not generated in the documents he provided. 6. As the factual basis for this particular has not been proven, there is no need to consider whether the conduct amounts to unsatisfactory professional conduct. 7. Complaint 1.2 is not proven. Patient A - Complaint 1.3 – prescribing alprazolam when not recommended by pain specialist "From 15 August 2019, the practitioner inappropriately prescribed Schedule 8 drug of addiction, Alprazolam, on the dates and in the quantities as set out in Schedule A of the Complaint in circumstances where: a. Patient A had been treated at the Westmead Pain Management Clinic on 16 July 2019; b. Alprazolam was not recommended to be prescribed to Patient A by a pain specialist at Westmead Pain Management Clinic." What does Complaint 1.3 allege? 1. Dr Morsingh submitted that to prove Complaint 1.3, the Commission would have to prove that the prescribing of alprazolam from 15 August 2019 is "inappropriate" in itself, and amounts to unsatisfactory professional conduct. As with Complaint 1.2, the phrase "in circumstances where" links the prescribing with the circumstances listed in Complaint 1.3(a) and (b). There is only one type of conduct identified, namely prescribing alprazolam in those circumstances. That conduct is said to amount to unsatisfactory professional conduct. 2. Furthermore, the inclusion of the word "inappropriately" in Complaint 1.3 is superfluous because that is not the legal test for unsatisfactory professional conduct. The Commission is required to prove the factual basis for the Complaint and that the conduct is significantly below the relevant standard. The Commission is not required to prove that the conduct is "inappropriate". Dr Morsingh's evidence 1. In respect of Particular 1.3, Dr Morsingh denies engaging in unsatisfactory professional conduct. He says alprazolam was not being prescribed to Patient A for pain relief, but for Patient A's anxiety and panic disorder. 2. On Monday 29 July 2019, Dr Morsingh recorded the following in his clinical notes: "Working on [stabilising] his use of opiates, and having a treatment plan, working in conjunction with the pain management specialist, Prof Sunderaj". 1. Dr Morsingh referred Patient A to A/Prof Sunderaj at the Westmead Pain Management Clinic for pain management on 22 May 2019. A/Prof Sunderaj's report of 16 July 2019 directed the continued use of OxyContin 40mg/bd noting that Patient A had been stable on that dose for many years. A/Prof Sunderaj also advised interchanging Panadeine Forte with Endone, particularly first thing in the morning and late at night. Dr Morsingh decided to continue the pain medication recommended by A/Prof Sunderaj. 2. A/Prof Sunderaj did not mention alprazolam in his report. According to Dr Morsingh, A/Prof Sunderaj knew that Patient A was taking alprazolam but did not express any concern in his report about its continued use. For that reason, Dr Morsingh says he did not perceive A/Prof Sunderaj's report to be suggesting that Patient A should not be prescribed alprazolam at all, merely that he was not recommending it for pain management. Dr Morsingh submits that it was reasonable for him to expect that if anyone at the Westmead Pain Management Clinic considered it inappropriate for Patient A to be taking alprazolam, they would have said so. 3. On 30 July 2019, Dr Morsingh wrote in the clinical notes for Patient A: "He has seen Prof Sunderaj and [has been] diagnosed with failed back surgery syndrome and has been assessed from a pain clinic perspective, and is suitable for a treatment plan with the use of Oxycontin 40mg bd. … I will now fill out the application to prescribe a controlled drug to the pharmaceutical services branch of the Ministry of Health." 1. On 5 August 2019, Dr Morsingh wrote in the clinical notes for Patient A: "We have sorted out the treatment plan for his back pain, and have a formal opiate based treatment plan. Now for mental health, [h]e is going to consult a psychiatrist to have an assessment and treatment plan for his mental health, and have a decision made about the use of [A]lprazolam. We have to [weigh] the risks versus benefits of this form of therapy. There is the addiction potential versus the benefits of controlling panic attacks and anxiety and improving his quality of life. Use of patient education, use of psycho-education. GP assessment and support and utilising CBT [cognitive behaviour therapy]". 1. These notes support Dr Morsingh's evidence that alprazolam was being prescribed for mental health, not for pain relief. Expert evidence 1. Dr Kertesz's evidence was that Dr Morsingh's continued prescribing of alprazolam was significantly below the relevant standard. When questioned about his opinion, Dr Kertesz accepted that Patient A's anxiety and panic attacks were not within the scope of the referral to A/Prof Sunderaj. Dr Kertesz commented that it is not uncommon for specialists to "stick to what they know" and that "you don't worry about it if they don't comment on something outside their realm". Dr Kertesz also acknowledged that in those circumstances it was acceptable for Dr Morsingh to take the view that the absence of any recommendation from A/Prof Sunderaj to prescribe alprazolam did not mean that it should not have been prescribed. Finding 1. The fact that alprazolam was not recommended to be prescribed to Patient A by a pain specialist and that Dr Morsingh prescribed it anyway, is not conduct that is below the relevant standard. Dr Morsingh prescribed alprazolam to Patient A for the treatment of his panic disorder. A/Prof Sunderaj was a pain management specialist and was not treating Patient A's anxiety. It was not within his specialist role to comment on the use of alprazolam and he did not do so. 2. Complaint 1.3 is not proven. Patient A - Complaint 1.4 – prescribing alprazolam and oxycodone without an authority "Between 4 March 2020 and 29 April 2020, the practitioner inappropriately prescribed Schedule 8 drugs of addiction, Alprazolam and Oxycodone to Patient A in circumstances where he did not have an authority from the NSW Ministry of Health to prescribe those drugs, contrary to s 28 of the Poisons and Therapeutic Goods Act 1966 ('PGTA')." 1. Sections 28(3) and (4) of the Poisons and Therapeutic Goods Act 1966 (NSW) provide that: 28 Prohibition on prescribing drugs of addition in certain cases (3) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction. (4) For the purposes of this section, the proper authority means an authority under section 29 that authorises the medical practitioner or nurse practitioner to prescribe or supply the drug of addiction to the person concerned. 1. A "drug dependent person" is defined in s 27 of that Act: 27 Definition In this Division: drug dependent person means a person who has acquired, as a result of repeated administration of: (a) a drug of addiction, or (b) a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, an overpowering desire for the continued administration of such a drug. Prescribing alprazolam without an authority 1. Dr Morsingh admits that the prescribing of alprazolam without an authority during that period constitutes unsatisfactory professional misconduct. 2. Dr Kertesz's evidence was that the onus is on the treating GP to obtain an authority as soon as is practical. 3. Dr Morsingh prescribed alprazolam to Patient A on five occasions between 17 April 2019 and 6 November 2019. We note that that was the period of prescribing, not 4 March 2020 to 29 April 2020, as set out in the Complaint. The Commission has amended the Complaint to reflect the correct dates. 4. Another doctor in the practice had been prescribing alprazolam to Patient A and Dr Morsingh continued prescribing that medication. 5. On 24 May 2019, Dr Morsingh referred Patient A to Dr Richa Rastogi, a psychiatrist, for assessment and for the preparation of a treatment plan. The referral letter noted that Patient A had anxiety disorder and panic attacks, and was using alprazolam to help him function. The plan, as recorded in the clinical notes, was to get a psychiatrist involved to develop a plan or to decrease the dose. 6. On 25 May 2019, Dr Morsingh prescribed alprazolam to Patient A for the second time. Dr Morsingh's notes record that Patient A understood that he needed to have a mental health treatment plan and that he had chosen a local psychiatrist for him to see. Despite this, Patient A did not see Dr Rastogi or any other psychiatrist. Dr Morsingh says that to the best of his knowledge, Patient A chose not to do so because the cost of the consultation, at approximately $495, was too expensive. 7. Dr Kertesz agreed that, despite the opinion expressed in his expert report, it was reasonable for Dr Morsingh to have written the first two scripts for alprazolam given that a psychiatric review was pending. 8. A third script was written on 5 August 2019. Dr Morsingh continued to write in the clinical notes that a treatment plan was needed and that Patient A was waiting for an appointment with a psychiatrist. Dr Kertesz agreed that it was reasonable for Dr Morsingh to have prescribed alprazolam on the third occasion because he had stressed the importance of seeing a psychiatrist if treatment was to continue. 9. Dr Morsingh wrote a fourth script for alprazolam on 30 September 2019 and a fifth on 6 November 2019. On 9 October 2019, Dr Morsingh recorded in his notes that Patient A was still waiting to see a psychiatrist "due to the cost". On 23 December 2019, his notes record that he was trying to wean Patient A off alprazolam and substitute it with diazepam until he consults psychiatrist. Dr Morsingh says he was not aware in 2018 that alprazolam was a Schedule 8 drug. 10. Dr Kertesz agreed that that was a reasonable course of conduct. He added that another alternative would have been to refer Patient A to a public psychiatrist, but agreed that there may well have been an extensive waiting time. Dr Kertesz agreed that, as Patient A ultimately ceased taking alprazolam, the conduct does not amount to unsatisfactory professional conduct. 11. Dr Kertesz gave the evidence we have outlined above in relation to Complaints 1.1(a) and (b) which were withdrawn. He expressed the view that prescribing alprazolam to Patient A was "reasonable" and not significantly below the relevant standard, given that a psychiatric assessment was pending. However, Dr Kertesz did not modify his opinion that prescribing alprazolam without an authority was significantly below the relevant standard. Findings 1. Dr Morsingh admits this particular and we find it to have been proven in respect of the failure to obtain an authority to prescribe alprazolam to Patient A between April 2019 and November 2019. Prescribing oxycodone without an authority 1. Dr Morsingh submits that to prove Complaint 1.4 in relation to the prescribing of oxycodone, the Commission has to prove not only that an authority was required to prescribe oxycodone to Patient A, but that the conduct in prescribing without an authority was "so inappropriate or unreasonable so as to make that conduct significantly below" the relevant standard. 2. For the reasons we have given, the words "inappropriately prescribed" in the Complaint do not add a separate complaint of inappropriate prescribing. There is only one Complaint. The Commission must prove the factual basis for that complaint and that it amounts to unsatisfactory professional conduct. 3. Dr Morsingh pointed out that Complaint 1.4 does not contain a separate allegation that he should have formed the opinion that Patient A was a "drug dependent person". The only allegation is that during a specified period Dr Morsingh prescribed oxycodone to Patient A when he did not have an authority as required by the legislation. That legislation contains a requirement that a practitioner not prescribe oxycodone without the proper authority, if they have formed the opinion that the patient is a "drug dependent person". Dr Morsingh submits that because he did not form that opinion, he could not have breached s 28(3) of the Poisons and Therapeutic Goods Act. 4. Dr Morsingh points to other cases where the Commission has identified in a separate particular to a Complaint, words to the effect that "the practitioner had formed, or ought reasonably to have formed the opinion that Patient A was a drug dependant person": Health Care Complaints Commission v Brittain [2019] NSWCATOD 161 at [23] and Health Care Complaints Commission v Qadri [2017] NSWCATOD 155 at [2]. We understand the submission to be that the Commission has not identified the Complaint with sufficient particularity and that the failure to do so is procedurally unfair. 5. Procedural fairness includes giving Dr Morsingh the opportunity to "ascertain the relevant issues": Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591; [1994] FCA 293. Put another way, Dr Morsingh must be informed of the case against him with sufficient clarity to allow him a fair opportunity to meet the case: Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70. The following comment about a solicitor in the case of O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 was cited with approval in King v Health Care Complaints Commission [2011] NSWCA 353 at [53]: "The follow comments made in O'Reilly v Law Society of NSW … are also applicable by analogy to complaints against medical practitioners: 'It is essential, both for the due protection of the interests of the solicitor and for the proper approach by the decision-making tribunal to its task, that charges of professional misconduct should be specified with particularity. Only then will the findings made give rise to decisions of appropriate certainty and particularity ... The appellant was entitled to have clear notice at the hearing … before the Statutory Committee of the precise ways in which the Society alleged he had been guilty of professional misconduct' (at 210 - [211] per Kirby P)." 1. Unlike civil proceedings in courts, there is no requirement in these kinds of disciplinary proceedings to formulate complaints as a pleading: King v Health Care Complaints Commission [2011] NSWCA 353 at [4], [8], [15] (per McColl JA), and [168], [170] (per Handley AJA). 2. The Commission must prove the factual basis for the complaint and that the identified conduct meets the definition of unsatisfactory conduct because it is below the relevant standard. The factual basis of Complaint 1.4 is that during the identified period Dr Morsingh prescribed oxycodone but did not have an authority to do so. Whether that conduct is below the relevant standard will depend on all the relevant circumstances including, most obviously, whether an authority was required. Dr Morsingh submits, in effect, that that conduct does not amount to unsatisfactory professional conduct because he did not need to obtain an authority. He was clearly on notice of the precise way in which the Commission alleged that he was guilty of unsatisfactory professional conduct. 3. This particular is not imprecise or likely to lead to false issues. Dr Morsingh knew what was being put against him and responded accordingly. Dr Morsingh's evidence 1. Dr Morsingh applied for and received authorities to prescribe Patient A with oxycodone for the period from 28 April 2019 to 3 March 2020. When the authority expired on 3 March 2020, Dr Morsingh did not reapply for several weeks. Ultimately, he received a new authority for the period from 30 April to 30 July 2020. Consequently, there was a gap of approximately seven weeks when he did not have an authority to prescribe oxycodone to Patient A. 2. On 17 March 2020, Dr Morsingh prescribed Patient A oxycodone 40mg controlled release tables, one tablet twice a day, and oxycodone 5mg tablets, one tablet twice a day as necessary. In his notes for 15 January 2020 for Patient A, Dr Morsingh wrote: "On parole, and is doing things by the book, to avoid breaches of his conditions. His opiate is with a NSW State [authority] for up to 80 mg of Oxycodone …" 1. In his notes for 10 February 2020 for Patient A, Dr Morsingh wrote: "He has made an appointment to see Prof Sunderaj to have assessment and management of back pain." 1. In his notes of 28 April 2020 for Patient A, Dr Morsingh wrote: "He will need to have another extension to his state authority for the prescribing of Oxycontin 40mg bd. He is still under the care, advice, and management plan of Prof Sunderaj, Nepean Pain Management. I have filled out the forms for application of the next authority." 1. Dr Morsingh said that even though there was a gap when there was no authority, he did not consider that it was necessary to have an authority for Patient A. Patient A did not exhibit signs of being a "drug dependent person" during the prescribing period. There was no indication that he was misusing oxycodone or that he was addicted. That was the case even though Dr Morsingh knew in April 2019 that Patient A had been using oxycodone for 12 years. 2. Dr Girgis was supervising Dr Morsingh at that time and reviewed his cases. After discussing the issue with Dr Girgis, Dr Morsingh decided that it was prudent to obtain an authority. He submitted the supporting documentation and treatment plan from A/Prof Sunderaj to the Ministry of Health and obtained the authority. When asked what the clinical basis was for obtaining an authority to prescribe oxycodone, Dr Morsingh said that it was mainly because of the high dose that Patient A was taking. He was on 80mg of oxycodone per 24 hours. That is an OMEDD (oral morphine equivalent daily dose) of 120 mg. In those circumstances, it is prudent to obtain an authority. In addition, Dr Morsingh considered it appropriate to prescribe oxycodone even in the absence of an authority because Patient A's wellbeing would have suffered if he immediately suspended those prescriptions. Expert evidence 1. According to Dr Kertesz, Dr Morsingh must have known that he needed an authority to prescribe oxycodone, otherwise he would not have applied for and received an authority for the period from 28 April 2019 to 3 March 2020. However, when questioned, Dr Kertesz agreed that there was no basis to form an opinion that Patient A was a "drug dependent person" during the relevant period. Consequently, Dr Morsingh did not need an authority to prescribe oxycodone. When asked by the Tribunal whether GPs would ordinarily seek an authority to continue prescribing opioids for patients who were on long-term stable doses, Dr Kertesz said, "the simple answer is no". He gave further evidence that medical practitioners do not need an authority in those circumstances. We agree. Even if an authority were required, in all the circumstances the seven week gap is not so serious as to be significantly below the relevant standard. 2. Complaint 1.4 is not proven in relation to the prescribing of oxycodone. Patient A – Complaint 1.5 – failure to refer to specialist for chronic pain "The practitioner failed to make timely and appropriate specialist referrals to treat Patient A's chronic pain." 1. Dr Morsingh denies that he failed to make timely and appropriate specialist referrals to treat Patient A's chronic pain. He says that he had an ongoing clinical relationship with Patient A from about 2008 to 2011. During that time, Patient A was referred to and received care from pain specialists. Between 2011 and 2019, Patient A was seeing another medical practitioner for his ongoing clinical care. On 26 March 2019, Dr Morsingh assumed primary care for his pain relief. During this period, he first prescribed oxycodone on 26 March 2019 and referred Patient A to a pain specialist on 22 May 2019. He says that referral was a timely and appropriate referral. Expert opinion 1. Dr Kertesz's opinion, as expressed in his report, was that Dr Morsingh's failure to provide timely and appropriate referrals until 2019, when he had been prescribing narcotics and benzodiazepines concurrently for 14 years, makes his conduct significantly below the relevant standard. 2. In his statement, Dr Morsingh says that Patient A received pain management supervision from a number of specialists in 2009 (for about 6 months) and in 2011. Dr Kertesz was not aware of those referrals when he wrote the expert report. Dr Morsingh did not see Patient A between 11 August 2015 and 2 June 2017. From 9 October 2017 to 26 March 2019, Patient A saw another doctor in the practice. In those circumstances, Dr Kertesz agreed that it was not significantly below the relevant standard for Dr Morsingh not to make "timely and appropriate referrals until 2019". We agree. 3. Complaint 1.5 is not proven. Patient B – Complaint 1.6 – failure to obtain appropriate history and examination "Between 22 April 2019 and 4 May 2019 the practitioner inappropriately prescribed Schedule 8 drugs of addiction, Targin and Oxycodone to Patient B, on the dates and in the quantities as set out in Schedule B to the Complaint, in circumstances where the practitioner failed to: (a) [withdrawn] (b) [withdrawn] (c) [withdrawn] (d) obtain an appropriate drug related history from Patient B which resulted in a failure to know that Patient B was on the Opioid Treatment Program ('OTP') at the time." 1. Dr Morsingh denies engaging in unsatisfactory professional conduct in the manner alleged. As with the other particulars of the complaint, we understand the Commission to be alleging that the specified prescribing amounts to unsatisfactory professional conduct because Dr Morsingh failed to obtain an appropriate drug related history. For the reasons already given, we do not accept Dr Morsingh's submission that the Commission must prove that the prescribing was inappropriate. All that must be proven is that the alleged conduct occurred and was significantly below the relevant standard. 2. By April 2020, Patient B had been Dr Morsingh's patient for about 24 years. Dr Morsingh did not ordinarily prescribe opioids to Patient B. Targin and oxycodone were prescribed short term for an acute medical issue, namely salivary gland infection. Dr Morsingh said that because of their long term relationship, he knew about Patient B's injuries and other medical issues before prescribing those drugs. Patient B was on the Opioid Treatment Program (OTP) but Dr Morsingh did not know about that. According to Dr Morsingh, Patient B did not exhibit any behaviours that indicated that he was a drug dependent person or on the OTP. He concedes that he did not have "visibility" of the patient's use of drugs of dependency because the patient had chosen to conceal that information from him. 3. In the expert report, Dr Kertesz expressed the opinion that is contained in particular 1.6(d). In his view, Dr Morsingh should have applied to the Ministry of Health for an authority. If he had done so, he would have been told that Patient B was on the OTP. A patient who is on that program can be prescribed narcotics or other S8 drugs only by the OTP prescriber. 4. As Patient B was a long term patient of Dr Morsingh's, Dr Kertesz agreed that by 22 April 2019, he would already have obtained a detailed history. On further questioning, Dr Kertesz said it was difficult to gauge whether Dr Morsingh should have known that Patient B had been on an OTP because it depends on the degree of suspicion and the relationship between the doctor and the patient. If a GP was in any doubt, he or she should phone the Ministry of Health. However, Dr Kertesz agreed that if the doctor was in no doubt that Patient B was drug dependent, they could prescribe S8 drugs. 5. Dr Kertesz also agreed that Patient B did not exhibit any drug dependent or drug seeking behaviour. Although Dr Morsingh prescribed oxycodone to Patient B in 2003, Dr Kertesz also agreed that it was not unreasonable that, in 2019, he did not remember that he had done so. 6. There are some references in the clinical notes to Dr Morsingh weaning Patient B off Endone and avoiding S8 drugs to manage back pain. The Commission submits that as he made those notes, Dr Morsingh should have known about Patient B's drug use history. Dr Morsingh admits that he was aware that Patient B was trying to reduce the amount of Endone and that Patient B preferred anti-inflammatory medication and physiotherapy to manage his pain. Dr Morsingh denied that these entries were a red flag for drug dependence. 7. Complaint 1.6(d) is about prescribing Targin and oxycodone without obtaining an "appropriate" drug related history from Patient B which resulted in a failure to know that Patient B was on the OTP. We are satisfied that Dr Morsingh did not obtain a comprehensive drug related history which would have included the fact that Patient B was on the OTP. However, we are not satisfied that that conduct is significantly below the relevant standard. Dr Kertesz effectively withdrew his criticisms when it was put to him that Patient B was a long term patient and Dr Morsingh would already have obtained a detailed history. Dr Morsingh's evidence was that he did not suspect Patient B was on the OTP or drug dependent and Dr Kertesz agreed that there was no evidence of Patient B exhibiting any signs of drug dependence or drug seeking behaviour. 8. Complaint 1.6(d) is not proven. Patient B – Complaint 1.7 – prescribing S8 drugs without authority "Between 22 April 2019 and 4 May 2019, the practitioner inappropriately prescribed a Schedule 8 drug of addiction, Oxycodone, to Patient B in circumstances where the practitioner did not have authority from the NSW Ministry of Health to prescribe Oxycodone to Patient B, contrary to s 28 of the PGTA [Poisons and Therapeutic Goods Act 1966]." 1. Dr Morsingh admits prescribing oxycodone to Patient B without an authority but denies that this conduct constitutes unsatisfactory professional conduct. According to Dr Morsingh, Patient B did not exhibit any behaviours that indicated that he was a drug dependent person or on the OTP. 2. When questioned, Dr Kertesz agreed that in circumstances where Dr Morsingh inadvertently prescribed oxycodone to a "drug dependent person", that is not conduct which is significantly below the relevant standard. We agree. 3. Complaint 1.7 is not proven. Patient B – Complaint 1.8 – prescribing testosterone inappropriately "Between 1 February 2018 and 12 November 2019, the practitioner inappropriately prescribed a Schedule 4B special restricted substance, Testosterone to Patient B in circumstances where he failed to: (a) undertake accurate pathology testing in relation to Patient B; (b) make appropriate referrals to specialists regarding Patient B's use of Testosterone." 1. Testosterone is a Schedule 4, Appendix B medication. Appendix B of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (Regulation) lists Schedule 4 substances (prescription-only medicines) that have more stringent controls on possession and supply because they are liable to abuse, misuse and diversion. These substances are referred to under the Regulation as special restricted substances, and are more commonly referred to as Schedule 4, Appendix B (S4B) medicines. 2. Testosterone replacement therapy (TRT) is clinically indicated for men with proven hypogonadism, or decreased functional activity of the gonads. In the case of males, that is the testes. 3. Dr Morsingh admits the factual basis for Complaint 1.8. He says he should not have prescribed testosterone without undertaking the testing or making the referrals that he would ordinarily have done. However, because he says he was acting under duress, he denies that these failures amount to unsatisfactory professional conduct. 4. From 15 May 2018 to 11 November 2019, Dr Morsingh issued Patient B with scripts for testosterone. At the proceedings under s 150 of the National Law, Dr Morsingh told the panel that he first met Patient B when practising at another practice in 1995. Patient B presented after an altercation at a local pub. While he was never overtly aggressive, there was "an undercurrent of that there in the background". When asked about the nature of the duress in 2017 when he was prescribing testosterone to Patient B, Dr Morsingh told the s 150 panel that: "He came to discuss his back injury and back problem which we were working on by increasing the core strength, activating the deep core and focusing on that. And then testosterone issue came out. He was complaining that he had symptoms and that's how it started, when I started prescribing. And I was monitoring it and then it got to a situation where I was under a bit of duress towards the end. So I monitored the blood tests until September 2017. So I gave some scripts for a period of two more years after that. [Patient B] was very insistent and persistent in getting his prescriptions. There was always that air that there could be a threat but without actually being an obvious threat. So it was always like an undercurrent. … My fear is to be physically attacked. I didn't say that but the thought was always in the back of my mind." 1. Dr Morsingh agreed with a panel member that the thought crossed his mind that Patient B might be misusing testosterone. Dr Morsingh went on to say that he changed his shifts around that time: "Now, there was a change - I used to work Wednesday evenings. So I moved away from the nights to try to avoid the situation of patients who come in the evening. There is an increased tendency of having more aggressive patients in the evenings than the mornings. And you'll notice that I work in the mornings rather than the evenings. And I thought to myself, 'It will be safer and you will get a slightly different patient demographic.'" 1. When questioned at the hearing, Dr Morsingh said he did not always feel intimidated when treating Patient B. He accepts that he should not have prescribed testosterone just because he felt under duress. 2. We are satisfied that Dr Morsingh felt under some pressure to prescribe testosterone to Patient B. However, on the basis of the evidence, we would not characterise that pressure as "duress". There were no overt or covert threats, nor was there any other intimidating behaviour. The prescribing of testosterone without undertaking pathology testing and referring Patient B to an appropriate specialist demonstrates that Dr Morsingh's skill and judgment are significantly below the relevant standard. A practitioner of his level of training and experience would be expected to have undertaken those tasks even if he felt some level of pressure from the patient. 3. Complaint 1.8 is proven. Patient C – Complaint 1.9 – inappropriately prescribing diazepam "Between 17 April 2019 and 25 April 2020, the practitioner inappropriately prescribed a Schedule 4D restricted substance, Diazepam to Patient C, on the dates and in the quantities as set out in Schedule C [to the Complaint], in circumstances where the practitioner failed to: (a) undertake an appropriate history prior to prescribing Diazepam; (b) perform an appropriate examination prior to prescribing Diazepam; (c) conduct appropriate investigations in relation to Patient C's long-term use of Diazepam; (d) prepare a therapeutic plan for long term management of prescribing Diazepam to Patient C; (e) seek appropriate advice from a specialist trained or experienced in the long-term management of patients on opiates and benzodiazepines; (f) appropriately consider that Patient C was on the OTP when prescribing diazepam long term to Patient C; (g) make timely and appropriate referrals to specialists regarding Patient C's use of Diazepam. 1. Dr Morsingh admits that he engaged in unsatisfactory professional conduct in the manner alleged. 2. Diazepam is a fast-acting, long-lasting benzodiazepine commonly used to treat anxiety disorders and alcohol detoxification, acute recurrent seizures, severe muscle spasms, and spasticity associated with neurologic disorders. Because it is a drug which may be abused and is addictive, it is listed under Schedule 4, Appendix D of the Poisons List which is proclaimed under s 8 of the Poisons and Therapeutic Goods Act. It is also known by the brand name Valium. 3. Dr Morsingh first saw Patient C on 15 November 2007 and continued to see him until 2020. When prescribing diazepam to Patient C over about 12 months from April 2019 to April 2020, Dr Morsingh did not do any of the things listed in Complaint 1.9. Dr Morsingh prescribed diazepam to Patient C while he was being treated with methadone for opioid dependence. 4. In Dr Kertesz's opinion, the conduct listed in Complaint 1.9 is significantly below the relevant standard. We agree. 5. Complaint 1.9 is proven. Patient D – Complaint 1.10 – prescribing of medication without management plan etc "Between 2 April 2019 and 29 May 2020 the practitioner inappropriately prescribed Diazepam; Oxycodone, Targin, Panadeine Forte; Temazepam; Suvorexant; Orphenadrine; Melatonin and Pregabalin to Patient D, on the dates as highlighted in Schedule D [to the Complaint], in circumstances where the practitioner failed to: (a) develop an appropriate management plan in relation to use of the drugs by Patient D; (b) provide clear quantities prescribed for each drug; (c) document the prescribing details for each drug in Patient D's medical records." 1. Dr Morsingh denies engaging in unsatisfactory professional conduct in the manner alleged. What does Complaint 1.10 allege? 1. The factual basis of Complaint 1.10 is that each of the medications listed was prescribed to Patient D during the time period and in the circumstances identified in the Complaint. The Complaint does not allege that any of the medications should not have been prescribed together. 2. For the reasons we have already given, we do not accept Dr Morsingh's submission that the Commission must prove that any of the alleged conduct is inappropriate or unreasonable. The legal test for the kind of unsatisfactory professional conduct identified in Complaint One is whether it is significantly below the relevant standard. Complaints 1.10(b) and (c) 1. Dr Morsingh states that he did provide clear quantities prescribed for each drug, as reflected on the patient records contained on the Medical Director software used by the medical practice at the time. Those details did not appear in the version of the documents provided to the Commission. As we have already found, Dr Morsingh's evidence on this point was not the subject of any real challenge under cross-examination. For the same reasons we gave in relation to Complaint 1.2, we find that Complaints 1.10(b) and (c) are not proven. Complaint 1.10(a) 1. As to the alleged failure to develop an appropriate management plan, Dr Morsingh says Patient D had several medical issues including ankle, back and hip surgeries, adjustment disorder and major depressive disorder. Between 2018 and 2020, Patient D had been referred to at least three specialist services, including for pain relief and for psychiatric care. Generally speaking, the medications prescribed to Patient D were determined by those specialists in consultation with Patient D. Given the complexities surrounding Patient D's health, Dr Morsingh says he decided to prescribe in accordance with the specialists' recommendations. When questioned about the medications he was prescribing, Dr Morsingh said the prescribing may appear haphazard but when the chronology is examined, that is not the case. Dr Morsingh did concede that he should have made any plan clear in his clinical notes. 2. Dr Kertesz noted that Dr Morsingh had prescribed multiple S4D drugs including two opioids, two benzodiazepines and two anticholinergics for the management of insomnia and non-cancer pain. Dr Morsingh also prescribed the S8 drug oxycodone. Even though he was being seen by various specialists during the relevant period, Dr Morsingh should have developed a management plan. The plan would have included the recommendations of the treating specialists. There was no written plan and the various medications appear to have been prescribed in a haphazard fashion. 3. Dr Kertesz agreed that prescribing each of the medications individually was not significantly below the relevant standard. Targin, melatonin and pregabalin were recommended by a specialist. The prescribing of Panadeine Forte on 12 February 2019 was not a problem. 4. Suvorexant, prescribed in September 2019, is an orexin receptor antagonist used to treat insomnia. It is much less addictive than Valium and other benzodiazepines. Orphenadrine, prescribed in December 2019 and January 2020, is a muscle relaxant previously prescribed by another doctor. 5. Dr Kertesz maintained that the issue is that there was no co-ordinated plan for managing the prescribing as a whole. It appears from the notes that Targin, Endone, Valium and temazepam may have been prescribed concurrently. The notes imply that Targin was eventually settled on as the preferred analgesic with Endone being used for breakthrough pain. Valium was consistently prescribed and temazepam was used for insomnia. 6. The prescribing of melatonin overlapped with the prescribing of temazepam and suvorexant and it can be assumed that temazepam was the main hypnotic prescribed with the others used as a temporary or breakthrough medication. The orphenadrine, baclofen and Valium would fit into the same pattern of prescribing as the hypnotics. Orphenadrine and baclofen are used as breakthrough for severe back muscle spasm. 7. Dr Kertesz's conclusion was that Dr Morsingh's haphazard prescribing of each of the medications listed without specific plans for use means that conduct is significantly below the relevant standard. Findings 1. Key principles for appropriate opioid prescribing in general practice are set out in the publication "Prescribing drugs of dependence in general practice, Part C2: The role of opioids in pain management" published by the Royal College of general practitioners in October 2017. One of those principles is: "As with any treatment, prescription of opioids should be based on a comprehensive biopsychosocial-based assessment; a diagnosis; thoughtful consideration of the likely benefits and risks of any medication, as well as of non-drug alternative interventions; and a management plan derived through shared decision making (SDM) and continual clinical monitoring." 1. We agree with Dr Kertesz that Dr Morsingh should have had a coherent management plan for the prescription of medications, particularly opioid medication such as oxycodone. Even though various specialists were recommending these medications, it was Dr Morsingh's responsibility to co-ordinate the prescribing. However, the failure to develop an appropriate management plan in relation to use of the drugs by Patient D is not conduct that is significantly below the relevant standard. 2. Complaint 1.10(a) is not proven. Patient E – Complaint 1.11 – inappropriate prescribing of S4D substances "Between 4 April 2019 and 29 April 2020 the practitioner inappropriately prescribed Schedule 4D restricted substances, Diazepam and Oxazepam to Patient E, on the dates and in the quantities as set out in Schedule E [to the Complaint], for management of anxiety, stress and insomnia in circumstances where: (a) guidelines for these drugs indicate that they are for short term use only, meaning a maximum of six months; (b) the practitioner was not a specialist psychiatrist and/or a specialist in alcohol and other drugs; (c) the practitioner failed to recognise the issues and dangers of long-term prescribing of Diazepam and Oxazepam; (d) the practitioner failed to recognise the issues and dangers of long-term prescribing of Diazepam and Oxazepam to Patient E in circumstances where Patient E had severe respiratory co-morbidity." 1. Dr Morsingh denies engaging in unsatisfactory professional conduct in the manner alleged. What does Complaint 1.11 allege? 1. For the same reasons we have given, we do not accept Dr Morsingh's submission that the Commission must prove that any particularised conduct was inappropriate or unreasonable or that the prescribing itself was significantly below the relevant standard. Complaints 1.11(a), (b) and (c) 1. Oxazepam is a benzodiazepine used to relieve symptoms of anxiety, including anxiety caused by depression, and the symptoms of alcohol withdrawal. It is an S4D drug. Patient E had been diagnosed with asthma, sleep apnoea, depression, emphysema and obesity. He is also alcohol dependent. 2. For a 12 month period, from April 2019 to April 2020, Dr Morsingh prescribed Patient E with diazepam on 22 occasions. A prescription for 5mg tablets was issued every 2 to 3 weeks. Dr Morsingh also prescribed oxazepam on fifteen occasions, with prescriptions for 30 mg tablets every 2 to 3 weeks. Dr Morsingh prescribed these drugs as an alternative to ongoing use of Mogadon. Mogadon is one of the brand names for nitrazepam, a benzodiazepine used to provide relief from insomnia and severe anxiety. 3. Dr Kertesz expressed the opinion in his expert report that Dr Morsingh's long term prescribing of oxazepam and diazepam was not appropriate. He referred to the guidelines for the use of diazepam and oxazepam which indicate that these drugs are to be used for a maximum of 6 months unless specifically indicated for longer term use. In his view, the use of the drugs long term (i.e. more than 6 months) was significantly below the relevant standard. 4. Dr Kertesz knew that Dr Morsingh had been prescribing Valium (diazepam) to Patient E since 2009. By April 2019, Patient E had been on that medication for 10 years. Dr Kertesz acknowledged that when he was referring to long term prescribing in the report, he was taking into account the full 10 year period rather than the 12 months specified in the complaint. While he emphasised that diazepam is intended for short term use only, he appreciates that it is virtually impossible to take some patients off benzodiazepines. In such cases, the patient should be told to try to minimise the dose. However, he agreed that continuing Patient E on diazepam when he had been taking it for 10 years was not significantly below the relevant standard. We agree. 5. Complaints 1.11(a), (b) and (c) are not proven. Complaint 1.11(d) 1. As to the dangers of long term prescribing of diazepam and oxazepam to Patient E when he had severe respiratory co-morbidity, Dr Morsingh submits that none of the specialists raised that as an issue. Dr Chuong, a respiratory and sleep physician, assessed Patient E and wrote a report dated 31 October 2016. He mentioned "vivid dreams" and "nocturnal movements" and recommended continuing him on Spiriva and Seretide. On 1 December 2016, Dr Borire, a neurologist, conducted an MRI and said it was most likely Patient E had REM sleep behaviour disorder. He would leave his overall management in the hands of his sleep physician. Patient E saw Dr Chuong again in February 2017. Dr Chuong stated that Patient E reported to him that he was taking Mogadon 5mg which is helping him sleep. No comment was made about this medication. Dr Chuong knew that Patient E was on diazepam in September 2016. 2. Dr Kertesz agreed that he would have been guided by the expert reports and if there was no adverse comment, that was a relevant consideration. Dr Kertesz added that he would query the specialists about those medications despite them not raising it as a concern. 3. Given Dr Kertesz's evidence that the absence of adverse comments by the experts was a relevant consideration, we do not consider that this conduct to be significantly below the relevant standard. 4. Complaint 1.11(d) is not proven. Patient E – Complaint 1.12 – inappropriate prescribing of S8 and S4D substances Between 4 April 2019 and 29 April 2020 the practitioner inappropriately prescribed Schedule 8 drug of addiction, Oxycodone and Schedule 4D restricted substances Diazepam and Oxazepam and Schedule 4 drug, Tramadol in combination to Patient E in circumstances where Patient E had severe respiratory co-morbidity. What does Complaint 1.12 allege? 1. For the same reasons we have already given, we do not accept Dr Morsingh's submission that the Commission must prove that the conduct set out in 1.12 is inappropriate. 2. Dr Morsingh denies engaging in unsatisfactory professional conduct. Dr Morsingh's evidence 1. Patient E had been diagnosed with COPD/emphysema, obstructive sleep apnoea, asthma, coronary artery disease with stents, paroxysmal atrial fibrillation, obesity, lumbar spondylitis, with lumbar disc prolapse and impingement, advanced right knee osteoarthritis, with right total knee replacement 19 May 2020, chronic alcoholism, nicotine addiction, severe chronic insomnia, major depression and anxiety disorder. 2. Patient E was seeing a respiratory physician every three months, with a CPAP (continuous positive airway pressure) downloading data directly to the specialist - Dr Brian Chuong. Prior to seeing Dr Morsingh, Patient E had been taking Mogadon to help with his insomnia. Patient E's use of Mogadon was considered without criticism by Dr Brian Chuong, in February 2017. Instead of Mogadon, Dr Morsingh decided to prescribe a combination of diazepam and oxazepam to treat Patient E's insomnia. He considered that combination to be a lower risk than Mogadon. In June 2020, Patient E's medication was reviewed and continued by Westmead Rehabilitation Hospital. 3. In 2019, Patient E had severe right knee pain from end stage osteoarthritis of the knee and an osteochondral fracture. Dr Morsingh prescribed oxycodone and tramadol to treat these issues as attempts to use Panadeine Forte and other weaker pain killers had not been effective. In August 2019, Dr Morsingh began prescribing Patient E tramadol. In September 2019, Patient E attended Westmead Hospital and was put on Endone 5mg. Dr Morsingh continued this by prescribing Patient E oxycodone. On or about 5 November 2019, the orthopaedic specialist, Dr Vijay Maniam, gave him analgesics. On or about 4 December 2019, the orthopaedic specialist, Dr Frederick Hoe, recommended a right total knee replacement, and in fact performed his right total knee replacement. The doctors at Westmead Hospital, and the orthopaedic surgeons, Dr Vijay Maniam and Dr Frederick Hoe, were aware of Patient E's current medications, including the diazepam and oxazepam, at the time. 4. Diazepam and oxazepam are both benzodiazepines which suppress the central nervous system. In his written report, Dr Kertesz expressed the view that there is a significant risk of synergistic effects from combining medications from similar or the same families of chemical structure. The concurrent use of benzodiazepines is to be discouraged. Because he has respiratory issues, Patient E was particularly at risk when taking these two drugs in combination. Dr Morsingh's response to that risk was to weigh it against other risks and to follow the lead of the sleep specialist Dr Chuong who was aware that these drugs were being prescribed. Dr Morsingh says there were extenuating clinical circumstances justifying this prescribing. 5. A recognised treatment for REM sleep behaviour disorder is a specific benzodiazepine called clonazepam. Dr Morsingh could not explain why he had not prescribed that medication instead of combining two other benzodiazepines. His only response was that other doctors had previously prescribed that combination of drugs. He acknowledged that it was his responsibility to make his own assessment and form his own opinion before prescribing any medication. In addition, Dr Morsingh failed to recognise the dangers of prescribing narcotics such as tramadol and oxycodone in combination with benzodiazepines. That conduct is significantly below the relevant standard. 6. Complaint 1.12 is proven. Patient F – Complaint 1.13 – inappropriate prescribing of zolpidem (Stillnox) "Between 17 February 2019 and 7 December 2019 the practitioner inappropriately prescribed a Schedule 4D restricted substance, Zolpidem (also known as Stillnox) to Patient F in circumstances where the practitioner failed to: (a) recognise and/or diagnose Patient F's excessive use and addiction to Stillnox; (b) appropriately treat Patient F's insomnia by means other than pharmacological; (c) provide an appropriate management plan for prescribing Stillnox to Patient F when the practitioner knew or ought to have known that Patient F was exhibiting drug seeking behaviour; (d) make an appropriate or timely referral to a specialist to treat Patient F's insomnia." 1. Dr Morsingh admits that he engaged in unsatisfactory professional conduct in the manner alleged. 2. The box containing Zolpidem contains the following warning: "Zolpidem may be associated with potentially dangerous complex sleep-related behaviours which may include sleep walking, sleep driving and other bizarre behaviours. Zolpidem is not to be taken with alcohol. Caution is needed with other CNS depressant drugs. Limit use to four weeks maximum under close medical supervision." 1. Dr Morsingh prescribed Zolpidem to Patient F for about 12 months. He wrote eight scripts during that period. There are several comments in Patient F's notes about excessive use of this medication but no challenge about excessive requests and excessive prescribing. 2. According to Dr Kertesz, Dr Morsingh did not attempt to review and regulate the quantities of Zolpidem prescribed. Dr Morsingh recognised that Patient A was abusing Zolpidem but did not attempt to reduce the dose or cease prescribing. His failure to treat Patient F's insomnia by other means, provide an appropriate management plan, recognise that Patient F was exhibiting drug seeking behaviour, or refer Patient F to specialists, is significantly below the relevant standard. 3. Complaint 1.13 is proven. Complaint Two – professional misconduct 1. We will consider the complaint that Dr Morsingh is guilty of professional misconduct in separate proceedings. Professional misconduct is defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. If we find professional misconduct, we have power to suspend or cancel Dr Morsingh's registration: National Law, s 149C(1)(b). However, Dr Morsingh is not currently registered as a health practitioner. The Tribunal cancelled his registration on 2 March 2022 for unrelated conduct and prohibited him from re-applying for registration for two years. In those circumstances, we have power to order that we would have cancelled Dr Morsingh's registration if he was still registered: National Law, s 149C(4)(a). We also have power under s 149C(4)(b) of the National Law to decide that Dr Morsingh is disqualified from being registered for a specified period or until specified conditions have been complied with. 2. If we do not find Dr Morsingh guilty of professional misconduct in the second stage of the proceedings, we do not have any of the general powers to caution, reprimand or impose conditions on Dr Morsingh's registration. Those powers are available only in relation to health practitioners who are registered: National Law, s 149A. Costs 1. We will reserve the question of costs until the next stage of the proceedings. Orders 1. Complaint 1.2 is not proven. 2. Complaint 1.3 is not proven. 3. Complaint 1.4 is proven in respect of the failure to obtain an authority to prescribe alprazolam to Patient A between April 2019 and November 2019. 4. Complaint 1.4 is not proven in respect to the failure to obtain an authority to prescribe oxycodone to Patient A. 5. Complaint 1.5 is not proven. 6. Complaint 1.6(d) is not proven. 7. Complaint 1.7 is not proven. 8. Complaint 1.8 is proven. 9. Complaint 1.9 is proven. 10. Complaint 1.10(a) is not proven. 11. Complaint 1.10(b) and (c) are not proven. 12. Complaint 1.11(a), (b) and (c) are not proven. 13. Complaint 1.11(d) is not proven. 14. Complaint 1.12 is proven. 15. Complaint 1.13 is proven. 16. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the medical history of any patient in evidence before the Tribunal is prohibited. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 11 August 2023 - Coversheet and Orders amended – Order 10 corrected to read "Complaint 1.10(a) is not proven". Para 4 word "oxycodone" replaced by "alprazolam". 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: 11 August 2023