Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gilhotra [2023] NSWCATOD 127 Hearing dates: 19 – 20 June 2023 Date of orders: 25 August 2023 Decision date: 25 August 2023 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr J Fogarty, Senior Member Dr A Badam, Senior Member R Wellington, General Member Decision: 1. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of 12 months from the date of this decision. 2. Under section 149A(1)(b) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the respondent's registration at the expiry of the period of suspension: 2.1 To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2.2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered Medical practitioners (excluding the subject practitioner) and: (a) The patients and patient records are shared between the practitioners. (b) There is always one other registered medical practitioner on site. 2.3. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2.4. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy — Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss their practice with their approved supervisor with particular focus on: (i) Appropriate prescribing practices, including pain management, identifying drug-seeking behaviours and non-pharmacological methods (ii) Patient management, assessment and investigations (iii) Safety netting, advice and referrals (b) At each supervision meeting, at least 5 patient records are to be reviewed and discussed with the Supervisor. Monthly Record reviews are to alternate between: (i) 5 patient records randomly selected by the Council-approved supervisor (ii) 5 patient records of complex and challenging patient presentations selected by the practitioner (iii) The details, feedback and discussion regarding the records are to be included in supervision reports. (c) To authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. (d) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition or any relevant decision or report (e) Not to practise until a supervisor has been approved by the Medical Council of NSW. 2.5. To submit to an audit by a random selection of their medical records by a person or persons nominated by the Medical Council of NSW and: (a) The audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council. (b) The auditor(s) is to assess the practitioner's compliance with Good medical record keeping standards, legislative requirements, and compliance with conditions. (c) The auditor(s) should pay particular attention to: (i) Appropriate prescribing practices particularly S4D medications (d) To authorise the auditor(s) to provide the Council with a report on their findings. 2.6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 3. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. 4. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply While the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 5. The practitioner is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: OCCUPATIONS - professional registration and discipline – where practitioner admits unsatisfactory professional conduct and professional misconduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Health Care Complaints Commission v Chen (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Lee v Health Care Complaints Commission [2012] NSWCA 80 Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 Texts Cited: Good Medical Practice: A Code of Conduct for Doctors in Australia (Medical Board of Australia, March 2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Gurmeet Gilhotra (Respondent) Representation: Counsel: S Maybury (Applicant) R Rodger (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law Ltd (Respondent) File Number(s): 2023/00013122 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, 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. REASONS FOR DECISION Overview 1. The Health Care Complaints Commission (the Commission) has applied to the Tribunal for a finding that Dr Gurmeet Gilhotra 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 Gilhotra's prescribing of opioids, benzodiazepines and an anti-psychotic drug to six patients over nearly two years. 2. Dr Gilhotra admits that she engaged in unsatisfactory professional conduct (Complaint One), admits that she failed to maintain adequate medical records for Patients A and B (Complaint Two), denies that she engaged in improper or unethical conduct (Complaint Three) and admits professional misconduct (Complaint Four). 3. The Commission obtained an expert report from Dr Golding. Dr Gilhotra did not require him for cross-examination. We agree with the opinions expressed in that report. 4. We find each of the Complaints to have been proven. 5. The Commission seeks orders including that Dr Gilhotra's registration be suspended for 12 months and that, on her return to practice she be subject to several conditions. Those conditions include that she not prescribe Schedule 8 drugs, work only in a group practice and be subject to Category C supervision. Dr Gilhotra submits that her registration should not be suspended but does not strenuously oppose the practice conditions sought by the Commission. Legal principles 1. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A(1). Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). The legislation also provides that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3A(2)(c). The purpose of the Tribunal's disciplinary powers is not to punish the practitioner but to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]. Complaint One – unsatisfactory professional conduct Definition of unsatisfactory professional conduct 1. Complaint One is that Dr Gilhotra has engaged in unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner: (i) 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. Dr Gilhotra admits that she is guilty of unsatisfactory professional conduct as defined in that provision. 2. When deciding whether Dr Gilhotra is guilty of unsatisfactory professional conduct under s 139B(1)(a) 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 Gilhotra's training and experience is extensive. She has been a general practitioner for 42 years. She has practised in all areas of general practice but her special interests have been in the field of women's and children's health, preventative medicine, mental health and chronic disease. Patient A – fentanyl and oxycodone 1. Complaint 1.1 to 1.6 relate to Patient A who is a 62-year-old Aboriginal man. Dr Gilhotra prescribed fentanyl and oxycodone to Patient A. 2. Fentanyl is a synthetic opioid indicated in the management of severe pain requiring opioid analgesia. It is an extremely potent and addictive narcotic and 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 fentanyl, as "S8" drugs. One brand name for fentanyl is Durogesic. 3. Oxycodone is a semi synthetic opioid medication that works in the same way as other opioids, like morphine and fentanyl, to block the pain receptors of the body. Oxycodone is an S8 drug of addiction and is indicated for the treatment of acute painful conditions. Oxycodone is also prescribed as part of palliative care pain plans for symptom management. It is not recommended for long term pain management. One brand name for oxycodone is OxyContin. No appropriate assessment of Patient A - Complaint 1.1 Patient A 1. On 20 November 2018, the practitioner inappropriately prescribed the schedule 8 drugs fentanyl and oxycodone to Patient A in the quantities as set out in Schedule A without conducting an appropriate assessment of Patient A. 1. Dr Gilhotra admits the particular. 2. From January 2013 to November 2018, Patient A had eleven consultations with various doctors in the practice. Some doctors had prescribed fentanyl and oxycodone, others had refused to do so. When Dr Gilhotra saw Patient A on 20 November 2018, she wrote that the purpose of the consultation was to "refill" (pain) medication. There is a history documented of parotid (salivary gland) cancer with a planned review by the treating surgeon "next week". Patient A told Dr Gilhotra that he worked in a mine in South Australia as a fly in fly out (FIFO) worker. He said he visited his family in Sydney every two to three months. He had come to the practice to renew his prescriptions which included Durogesic patches (fentanyl) and OxyContin (oxycodone) as well as diabetic and hypertension medication. Dr Gilhotra prescribed fentanyl and oxycodone. 3. Dr Gilhotra does not recall what she did to assess Patient A at this consultation. She said that it is her standard practice to perform a full physical examination including examining the patient's back for tenderness, assessing any abnormality of gait and looking for any areas of muscle wastage in the buttocks. On reviewing her medical records she acknowledges that she did not write anything about such a physical examination in her notes. She said that "depending on time" she does not make a record. She added that she usually records major findings. 4. Dr Gilhotra has no recollection of physically assessing Patient A before prescribing S8 medications. We are not satisfied, based on the account of her usual practice, that she conducted any physical examination. If she had done so, she would have recorded it in her notes. 5. Dr Gilhotra agreed that the only thing she relied on when deciding what medications to prescribe was the list under the heading "current medications" in Patient A's file. She agreed that it is not sufficient to merely repeat what another doctor has prescribed. She should have made her own assessment. 6. Dr Gilhotra did not conduct an adequate assessment of Patient A before prescribing S8 drugs on 20 November 2018. 7. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing S8 drugs to Patient A who she should have known was drug dependent, without authority – Complaint 1.2 2. Between 20 November 2018 - 10 September 2020, the practitioner inappropriately prescribed Schedule 8 drugs to Patient A in the quantities as set out in Schedule A in circumstances where: (a) The practitioner knew or ought to have known Patient A was a drug dependent person; and (b) The practitioner did not obtain the proper authority from NSW Ministry of Health, contrary to section 23(3) of the PTGA. 1. Dr Gilhotra admits the particular. 2. There are restrictions on prescribing opioids in New South Wales. An authority is required from NSW Health to prescribe an S8 drug (including fentanyl), to a "drug dependent person". Sub-sections 28(3) and (4) of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA) provide that: (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 the PTGA:: 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. 1. The risk of drug dependence for people using fentanyl patches is high. Fentanyl can be misused with the active ingredient extracted from patches and injected or sold on the black market. General practitioners should be aware of the known harmful effects associated with fentanyl such as potential dependence, withdrawal, problematic drug use (including diversion and misuse), falls and adverse cognitive effects. Patients should be made aware of these risks. All patients with non-cancer related pain should have plans to be weaned off opioid analgesics. 2. Dr Gilhotra says that she knows that asking for high doses of opioids, acting irrationally and accessing multiple doctors are signs of drug dependence. However, she said she did not think Patient A was "drug dependent" because he complained of pain, he was a "family man" with a steady job and he did not appear anxious or irrational. It did not occur to Dr Gilhotra that if Patient A was working in a mine as a labourer, it is likely that he would be subject to drug testing. Nor does Dr Gilhotra appear to have appreciated that a person may inadvertently become drug dependent over time. Dr Gilhotra did not ask Patient A why he could not get a script from his regular GP. She agreed that she should have been suspicious of patients who see multiple doctors. 3. Patient A had been receiving fentanyl patches and oxycodone from the practice since 2014. On sixteen occasions between 14 December 2018 and 20 May 2021, there are entries about waiting for confirmatory evidence of an underlying diagnosis or specialist advice to warrant ongoing opioid prescription. In 2016, 2017 and 2018 three doctors had declined to prescribe S8 drugs to Patient A because of lack of documentation including an up-to-date letter from his treating doctor. The most recent refusal was two days before Dr Gilhotra's first consultation with Patient A. That decision was documented in Patient A's clinical notes. Dr Gilhotra said she could not remember whether she had read that note. 4. Dr Gilhotra did not question Patient A as to why he could not ask his doctor in South Australia to provide him with the scripts he said he needed. Dr Gilhotra's reason for not doing so was that Patient A told her that the FIFO doctor only visited once a week or once a month. 5. After her initial consultation with Patient A, Dr Gilhotra recalls speaking to a senior doctor at the practice to enquire whether she needed to obtain an authority. She said she asked about authorities in general terms, not about whether Patient A needed an authority. The senior doctor said he did not know. 6. Dr Gilhotra said she thought because the patient had received the prescription at the practice previously that she could continue to prescribe. She accepts now that she should not have continued prescribing on that basis and should have applied for an authority. 7. Dr Gilhotra was familiar with the need to obtain an authority because she had obtained one when she was working as a sole practitioner in the late 1990s. Dr Gilhotra said that because she was now in a group practice, she did not know whether the authority attached to the practice as a whole or the individual doctor. 8. We accept that Dr Gilhotra may have been unsure whether she needed to personally apply for an authority before prescribing S8 drugs to a drug dependent patient. However, she knew that an authority was required. She failed to exercise sufficient care and judgment, to ensure that she understood and complied with this important legal safeguard. We agree with the expert witness, Dr Golding, that it should have been clear that Patient A was a "drug dependent person". His "overpowering desire for the continued administration of such a drug" was obvious. 9. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Prescribing oxycodone and fentanyl to Patient A in a quantity and for a purpose inconsistent with therapeutic standard - Complaint 1.3 3. Between 20 November 2018 - 10 September 2020, the practitioner prescribed the schedule 8 drugs oxycodone and fentanyl to Patient A in the quantities as set out in Schedule A in a quantity and for a purpose that does not accord with a recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR. 1. Dr Gilhotra admits the particular. 2. This particular is based on the requirement in clause 79 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (Poisons Regulation): 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. Quantity provided 1. Dr Gilhotra prescribed very high quantities of fentanyl and oxycodone to Patient A. 2. When prescribed, fentanyl may be administered in a transdermal patch applied to the patient's skin. Fentanyl accumulates to form a 'depot' in the skin below the patch, from where it gradually enters the circulation. Each patch lasts 72 hours (3 days). One fentanyl 100mcg/hr transdermal patch applied every 3 days is the equivalent of approximately 300mg of oral morphine equivalent daily dose (OMEDD). 3. According to Dr Golding, the usual dose of 0xycodone is 5mg every three hours as required (prn). Treatment of acute pain with opioids should not be for more than three days. If response is poor despite increasing the dose to more than 30mg daily, it is recommended to slowly reduce and then stop. Reassessment and alternative treatment is required. The risk of side effects increases above 60mg/day OMEDD. These risks include dependence, tolerance, respiratory depression, constipation, confusion, reduced ability to concentrate and euphoria or negative mood. 4. On 20 November 2018 Dr Gilhotra prescribed fifteen 100 mcg/hr fentanyl patches with one repeat. She also prescribed 84 oxycodone 80mg modified release tablets. That was a 75 day supply of fentanyl and a 42 day supply of oxycodone. According to the OMEDD conversion table, this is equivalent to 540mg of morphine (240 from oxycodone and 300 from fentanyl). 5. We accept Dr Golding's opinion that the OMEDD of the dosage regime prescribed by Dr Gilhotra of 540mg is well above the threshold recommended for long term treatment of chronic pain. In fact, it is more than five times the recommended threshold of 100mg and nine times above the recommended threshold of 60mg when there has been no endorsement from a pain medicine specialist. 6. The only explanation Dr Gilhotra gave for the extremely high quantities of prescribing is that she probably did not look back in the notes to see how much had previously been prescribed. In 2018, when she saw Patient A for the first time, she said her practice was to review the "current medications" part of the computer record for that patient. When prescribing for Patient A, she just repeated the prescriptions listed under that heading. 7. On 15 July 2019 Dr Gilhotra provided two separate scripts for fentanyl, one for 50 patches and the other for 30 patches. That is a total of 240 days' worth of patches. That is also the quantity that is set out in Schedule A to the complaint. Dr Gilhotra did not deny that she prescribed that quantity in her Reply document. When questioned at the hearing she said that she could not remember whether she wrote two scripts for the same drug and suggested that it may have been a printer error. 8. Dr Gilhotra admitted in the Reply document that these were the quantities provided. Dr Gilhotra agreed that if she did prescribe that quantity, it would have been a substantial oversupply. She admitted it was "too much" and that she was "embarrassed and ashamed". Purpose of prescribing 1. Dr Gilhotra prescribed S8 drugs to Patient A for a purpose that does not accord with a recognised therapeutic standard of what is appropriate in the circumstances. Under clause 78(1) of the Poisons Regulation, a practitioner must not prescribe S8 drugs otherwise than for medical treatment. 78 Prescriptions may be issued for certain purposes only (1) A medical practitioner must not issue a prescription for a drug of addiction otherwise than for medical treatment (including in a clinical trial). 1. The appropriate therapeutic standard for prescribing fentanyl and other opioids is for the management of chronic cancer pain requiring opioid analgesia. Opioids should not be used for chronic non-cancer pain other than in exceptional circumstances, such as the presence of severe opioid responsive pain where other management options have failed or are inappropriate. Opioids should not be used to treat addiction. Dr Gilhotra agreed that a claim of chronic back pain is not a therapeutic reason for prescribing S8 drugs. 2. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing oxycodone and fentanyl to Patient A without taking appropriate steps - Complaint 1.4 4. Between 20 November 2018 - 10 September 2020, the practitioner inappropriately prescribed the schedule 8 drugs oxycodone and fentanyl to Patient A in the quantities as set out in Schedule A, without: (a) obtaining a review of Patient A's pain management by another medical practitioner or pain medicine physician after 12 months' continued use of the drugs, (b) corroborating evidence of Patient A's requirement for the drugs, (c) defining the cause of Patient A's pain, (d) referring Patient A to a pain specialist or psychologist, and (e) including paracetamol in Patient A's pain management regimen. 1. Dr Gilhotra admits the particular. 2. Best practice is to seek expert advice from a pain management specialist when prescribing opioids above 60 mg OMEDD. If opioids are prescribed for more than 12 months, the patient's pain management plan should be reviewed by another medical practitioner, preferably a specialist pain medicine physician. Considering the number and frequency of pain related consultations by Patient A, and the large volume of opioids prescribed, Dr Gilhotra should have sought advice from a pain specialist. She should also have referred Patient A to a multidisciplinary team for comprehensive pain management assessment. 3. Dr Gilhotra made no effort to corroborate Patient A's claim of back pain or identify the cause of the pain. Although Dr Gilhotra says that Patient A complained of back pain, and that was one of the reasons she prescribed S8 drugs, the clinical notes of the first visit on 20 November 2018 do not mention back pain. When asked if she was sure if Patient A mentioned back pain, Dr Gilhotra said she did not remember. 4. Another supposed cause of Patient A's pain was parotid cancer (cancer of the salivary gland). Patient A apparently reported having had surgery to remove a cancerous tumour on the right side of his neck in 2010. He told Dr Gilhotra that he was waiting for the same surgery on the left side. Dr Gilhotra did not think it unusual that Patient A had been waiting years for cancer surgery. She admits that she should have asked him about that. 5. Paracetamol, a non-addictive form of pain relief, was not included in the chronic pain regime. 6. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Failing to respond appropriately to Patient A's drug seeking behaviour -Complaint 1.5 5. The practitioner failed to respond appropriately to drug seeking behaviours exhibited by Patient A, and circumstances indicating Patient A was engaging in drug seeking behaviour, including: (a) Patient A's ongoing requests for opioid prescriptions, (b) the concerns expressed and recorded in Patient A's records by other practitioners at the Medical Practice that there was no central coordinating medical practitioner in charge of a coherent long-term pain management plan for Patient A, and (c) receipt of an unusual request by a person purporting to be an interstate doctor requesting the practitioner provide Patient A with 3 months' supply of schedule 8 drugs. 1. Dr Gilhotra admits the particular. 2. On 22 November 2018, two days after the first consultation, Dr Gilhotra saw Patient A again. She made the following note which is transcribed verbatim: Dr patricia (sic) Abbots rang from Adelaide Luka Mines S Australia saying that she is on holiday. [Patient A] and his family known to her for long time. Needs 3/12 (three months) supply of painkillers, to cover over Xmas period At present stable Will get letter of H (history?) summary for our records Refil med (Words in brackets added.) 1. Dr Gilhotra said she spoke to a person on the phone claiming to be Patient A's GP. That person told her she would fax through Patient A's medications the following Monday, but she did not do so. Dr Gilhotra provided the prescriptions requested by the person purporting to be Patient A's general practitioner. 2. When thinking back about this phone call, Dr Gilhotra could not remember whether Patient A phoned the "doctor" and passed his phone to her or whether she dialled the number herself. Either way, it did not strike her as unusual that a doctor, who was supposedly on holidays, would request that she prescribe three months' supply of an S8 drug. Dr Gilhotra said that "Dr Abbots" sounded professional and she did not see any reason to verify her identity. She did not ask "Dr Abbots" why she did not write the scripts herself. Finally, Dr Gilhotra did not wait until she had received a fax from "Dr Abbots" before writing further scripts. Dr Gilhotra agreed that there was no point saying that she would wait to receive a history from "Dr Abbots" unless she actually did so. 3. Dr Gilhotra said she did not suspect that Patient A may have been drug seeking until she received a telephone call from a pharmacist in South Australia in May 2020. The pharmacist told Dr Gilhotra that Patient A was drug dependent. Dr Gilhotra then cancelled the prescriptions and told Patient A to see a local GP or go to hospital. About that time Dr Gilhotra said she asked the receptionist to contact the Medicare Prescription Shopping program (prescription shopping program). That program can identify people who have triggered a threshold for excessive S8 prescriptions. Patient A was not listed. 4. On 14 December 2018, about three weeks after Dr Gilhotra supposedly spoke to Patient A's general practitioner, another doctor in the practice refused to give Patient A S8 drugs. When questioned at the hearing, Dr Gilhotra agreed that presenting for more medication three weeks later is a serious red flag for drug seeking behaviour. However she does not remember whether she saw the previous note from December 2018. She agreed that if she had looked at it, she would have realised it was dangerous to prescribe S8 drugs to Patient A two months later. 5. Patient A saw Dr Gilhotra again on 19 February 2019. Her notes state that Patient A told her that his wife's family had been killed in a car accident. Patient A also informed her that he was to undergo surgery on his thyroid at the end of March 2019. Dr Gilhotra took Patient A's blood pressure and pulse. The following day, 20 February 2019, Dr Gilhotra received a telephone call from Patient A informing her that the police had confiscated his prescriptions thinking he was a drug addict. He told her that he had shown all the information to his solicitor and that he may call her. 6. Three weeks later, on 14 March 2019, Patient A attended for a 'refill' of his medications. He again told Dr Gilhotra that his prescriptions had been taken by the police. This time Patient A gave her the name and phone number of a person he said was his lawyer. Dr Gilhotra said she telephoned that person and left a message for him to call her back. The person called her back and asked for the dates of the prescriptions written in November. Dr Gilhotra said she provided him with those dates but took no steps to confirm that the person she was speaking to was Patient A's lawyer. 7. Dr Gilhotra did not hear from Patient A again until four months later. At a consultation on 15 July 2019, Patient A informed Dr Gilhotra that his brother in law had committed suicide and that his planned surgery for parotid cancer had been postponed again. Dr Gilhotra told Patient A that she needed to speak to his doctor. She subsequently received a call from a person identifying himself as Dr Mills from the Royal Flying Doctor Service and requesting that she prescribe Patient A's medications. Dr Gilhotra provided the prescriptions. Dr Gilhotra also asked Patient A to return the following day for a blood test and health assessment. 8. Dr Gilhotra received a facsimile signed by "Dr John Mills" dated 23 June 2019. It was on the letter head of the Royal Flying Doctor Service. Dr Mills' name is spelt "Milles" on the top of the letter. The letter was addressed to "Dear DR,". It stated that Patient A had Parotid gland cancer, lower lumbar spinal injuries from a car accident and that further investigations are underway. A copy of Patient A's 'medicine summary' was attached which was not in the orthodox format. 9. At the time she saw the letter Dr Gilhotra said she thought it was authentic. She did not look at it in detail. Dr Gilhotra agreed in hindsight that on any moderately careful examination it raises concerns as to whether it is legitimate. However, it was not until this matter arose and she went back to have a look at the letter that she saw its flaws. She realises now that she should have been more suspicious of this letter at the time given the way it is written. 10. The next time Dr Gilhotra saw Patient A was on 9 January 2020. He told her that he was on holidays, that he was still getting pain and was awaiting parotid surgery. 11. On 28 May 2020 Dr Gilhotra had a tele consultation with Patient A who asked if she could fax his medications to a pharmacy. She did so. When questioned about that, Dr Gilhotra said she prescribed more medication even though six weeks earlier she had prescribed 30 patches of fentanyl (90 days' supply). She said she did so because she was concerned about Patient A's welfare as he was stranded at the South Australian border due to COVID 19 travel restrictions. 12. Dr Gilhotra did not prescribe Patient A any medications between June 2020 and August 2020, even though she had telehealth consultations with him. On 25 August 2020 she received a telephone call from Dr Ashwari Baker in South Australia. Dr Baker rang to ask whether Dr Gilhotra had an authority from Canberra. Dr Gilhotra told her that Patient A obtained his prescriptions from a doctor at the mines. Dr Baker told Dr Gilhotra that she would get an authority for him. Dr Gilhotra also told Dr Baker that she had received a call from a pharmacist expressing concern that the patient may be drug dependent. 13. It is good medical practice to seek advice from a colleague or specialist. The Good Medical Practice: A Code of Conduct for Doctors in Australia (Medical Board of Australia, March 2014) states at 2.2.9 that good medical practice involves: Consulting and taking advice from colleagues when appropriate. 1. Dr Gilhotra could have sought advice from other doctors in the group who had also seen Patient A. Three of them had previously declined to prescribe S8 medications. 2. Dr Gilhotra agreed that before prescribing S8 medications it is important to review prior medical records. One reason for doing so is to form a view as to whether the patient is drug dependent. Dr Gilhotra said she knew Patient A had been taking S8 medications since 2010. She said she looked at previous doctors' clinical notes "depending on the time limits" but admitted that "sometimes I don't". 3. We find that Dr Gilhotra did not look at the previous clinical notes for Patient A. She merely checked the 'current medications' list in the records and wrote a script for those medications. 4. Dr Gilhotra also agreed that it is good practice for the care of a patient who is being prescribed S8 drugs to be co-ordinated under the care of one prescriber. That practice avoids doctor shopping. Dr Gilhotra did not recognise the concerns of other practitioners within the practice that S8 medications should no longer be prescribed. She did not appear to appreciate the need for a central coordinating medical practitioner to be in charge of a coherent long-term pain management plan. 5. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Failing to make adequate inquiries as to Patient A's purpose - Complaints 1.6 6. The practitioner failed to make adequate inquiries as to whether Patient A was requesting prescriptions for fentanyl and oxycodone for non-therapeutic purposes or purposes of diversion. 1. Dr Gilhotra admits the particular. 2. Dr Gilhotra said she discussed the medication with Patient A and asked him to get a letter from his treating doctor in South Australia when he next saw him. Dr Gilhotra made no other inquiries. 3. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Patient B - fentanyl 1. Patient B was in his early fifties when he saw Dr Gilhotra for a single consultation on 22 November 2018. Dr Gilhotra prescribed fentanyl. Inappropriately prescribing fentanyl to Patient B when he was exhibiting drug seeking behaviour – Complaint 1.7 7. On 22 November 2018, the practitioner inappropriately prescribed the schedule 8 drug fentanyl to Patient B in the quantity as set out in Schedule B, in circumstances where Patient B exhibited drug seeking behaviour including: (a) Patient B was a new patient and in transit to Hervey Bay, Queensland, (b) Patient B complained of chronic ankle and back pain, (c) Patient B presented without apparent record of imaging or specialist reports available, (d) Patient B had requested but had been refused the same drugs from Dr Michael Purcell, a colleague of the practitioner at the Medical Centre, on 19 November 2018, and (e) Patient B presented with a bundle of correspondence and documents from a previous treating general practitioner, all of which was several years old. 1. Dr Gilhotra admits the particular. 2. Dr Gilhotra recalls that on the morning of 22 November 2018, Patient B was in the treatment room with ankle pain. The receptionist told her that Patient B had been seen by another doctor in the practice a few days earlier. Dr Gilhotra says in her statement that she went to her consultation room and opened the case notes for Patient B on her computer but did not review Patient B's notes. However, when questioned at the hearing, Dr Gilhotra said she did see a note from the other doctor who had refused to prescribe S8 drugs to Patient B. We are satisfied that Dr Gilhotra did see the note which had been made three days earlier, but ignored it. 3. Patient B told Dr Gilhotra that he was travelling to Queensland and that he needed his medications. He requested oxycodone and fentanyl patches. Dr Gilhotra recorded in the notes that she has seen an "old" letter. That letter, from Patient B's GP to a rehabilitation physician, was more than six years old. It listed Patient B's "current rehabilitation issues" as including chronic right ankle pain and chronic low back pain. Patient B also gave Dr Gilhotra radiology and other reports from 2012 diagnosing early osteoarthritis in his knees, arthrodesis and lumbar spondylosis. Patient B presented without any records of imaging or specialist reports. Dr Gilhotra acknowledged that nothing in the old letter or the reports justified writing a script for fentanyl. 4. Dr Gilhotra says she checked the fentanyl patches on Patient B's arm to confirm that he was using the fentanyl patch properly. She prescribed fentanyl but told Patient B that she would not prescribe any more until she received a letter from his GP. 5. Dr Gilhotra admits that the behaviours listed in this particular are drug seeking behaviours. Dr Gilhotra did check to see if Patient B was on the prescription shopping program and was advised that he was not on the list. She acknowledged that that was not a sufficient response to Patient B's drug seeking behaviours. 6. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing fentanyl to Patient B who was drug dependent, without authority – Complaint 1.8 8. On 22 November 2018, the practitioner inappropriately prescribed the schedule 8 drug fentanyl to Patient B in the quantity as set out in Schedule B in circumstances where: (a) the practitioner knew or ought to have known Patient B was drug dependent; and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health, contrary to s 28(3) of the PTGA. 1. Dr Gilhotra admits the particular. 2. As we have said in relation to Complaint 1.2, an authority is needed from NSW Health to prescribe fentanyl to a drug dependent person. Dr Gilhotra checked with the prescription shopping program but Patient B was not listed. However, that program is a Pharmaceutical Benefits Scheme (PBS) based list and will not detect "private" opioid scripts. 3. Patient B was not suffering from an acute injury. He said he was travelling and had run out of medication. He reported chronic pain in his ankle and back but did not provide a record of imaging or a specialist report. Patient B had requested the same medication from a colleague in the practice three days earlier but that request had been declined. These matters, in combination, strongly suggest drug dependence. 4. Dr Gilhotra admits that she should have formed the opinion that Patient B was a "drug dependent person" and applied for an authority before prescribing fentanyl. 5. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Inappropriately prescribing fentanyl to Patient B without proper inquiries, history and examination – Complaint 1.9 9. On 22 November 2018, the practitioner inappropriately prescribed the schedule 8 drug fentanyl to Patient B in the quantity as set out in Schedule B in circumstances where: (a) the practitioner failed to make proper inquiries with Patient B's current, primary treating practitioner, and (b) the practitioner failed to take a comprehensive history and undertake a complete physical examination. 1. Dr Gilhotra admits the particular. 2. Before prescribing opioids for the first time, Dr Gilhotra should have telephoned Patient B's primary treating doctor to ensure that such a script was appropriate. The consultation with Patient B took place on a Thursday at 8.30 am. Dr Gilhotra could have telephoned Patient B's treating doctor but she did not do so. 3. Patient B told Dr Gilhotra that he suffered from chronic pain in his right ankle and back. Dr Gilhotra did not take a comprehensive history nor did she undertake a complete physical examination. We are satisfied that Dr Gilhotra observed Patient B using crutches and formed the view that he was in significant pain. However, we are not satisfied that Dr Gilhotra examined Patient B's ankle or his back. There is no record in the notes of such examinations. The only record is of Patient B's blood pressure and pulse. Furthermore, the consultation lasted a mere 8 minutes and 23 seconds. It is unlikely that Dr Gilhotra could have conducted a complete physical examination in that time. In any case, Dr Gilhotra admits this particular. 4. These particulars are proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing fentanyl to Patient B in a quantity and for a purpose inconsistent with therapeutic standard – Complaint 1.10 10. On 22 November 2018, the practitioner inappropriately prescribed the schedule 8 drug fentanyl to Patient B in the quantity as set out in Schedule B, in a quantity and for a purpose not in accordance with a recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR in that: (a) he prescribed the maximum quantity of 5 patches, and (b) fentanyl is not indicated for the treatment of chronic ankle and back pain. 1. Dr Gilhotra admits the particular. 2. As we have said under Complaint 1.3, the therapeutic standard for prescribing fentanyl is for the management of chronic cancer pain requiring opioid analgesia. Opioids should not be used for chronic non-cancer pain other than in exceptional circumstances, such as the presence of severe opioid responsive pain where other management options have failed or are inappropriate. Dr Gilhotra admits that fentanyl is not indicated for Patient B even if he had been experiencing chronic ankle or back pain for many years. 3. As for the quantity prescribed, Dr Gilhotra prescribed five fentanyl patches which is a fifteen day supply. She agreed that it would not have taken Patient B fifteen days to travel home to Queensland. She said it did not occur to her that she could prescribe one patch, rather than one box of five patches. 4. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Patient C – alprazolam, diazepam and venlafaxine 1. Dr Gilhotra prescribed the S8 drug alprazolam to Patient C. She also prescribed the Schedule 4, Appendix D (S4D) drug diazepam. Schedule 4 (S4) substances such as diazepam are only available by prescription. These are drugs which may be abused and/or are liable to cause dependence. Both alprazolam and diazepam are benzodiazepines. On a later date, Dr Gilhotra prescribed venlafaxine. Inappropriately prescribing S8 drugs to Patient C – Complaint 1.11 11. On 24 August 2020, the practitioner inappropriately prescribed the schedule 8 drug alprazolam to Patient C in the quantity as set out in Schedule C, in circumstances where: (a) the risks associated with prescribing alprazolam to Patient C were greater than the likely benefit the drug would have provided to Patient C, and (b) alprazolam is not recommended for patients with a history of drug abuse and where Patient C had a history of drug abuse. 1. Dr Gilhotra admits the particular. 2. Patient C was in his early 40s when he saw Dr Gilhotra on 24 August 2020. At the consultation, Dr Gilhotra prescribed the S8 drug alprazolam. That was the first time in the approximately fifty visits to the practice that Patient C had been prescribed alprazolam. 3. Patient C's mother accompanied him to the appointment. Dr Gilhotra recorded in the clinical notes that Patient C was "feeling low as mum has cancer" and because he "says has been taking (alprazolam) from Poland" and "has been seeing psychologist in Poland". Patient C's mother pleaded with Dr Gilhotra to treat her son's anxiety as he was her carer. Dr Gilhotra said she would not normally prescribe alprazolam but because he told her he was already taking that medication she did not want him to suffer the side effects of a sudden withdrawal. 4. Dr Gilhotra said she told Patient C that he would need to set a goal to taper off alprazolam. He was taking 2 mg a day and Dr Gilhotra told him to take ½ a tablet twice a day (1 mg). Dr Gilhotra said that Patient C's mother "was in charge of the medication" at the time and she was leaving it to her to decide whether Patient C's withdrawal symptoms were bad enough to justify more medication. 5. Although she did not read Patient C's clinical notes, Dr Gilhotra says she was aware of Patient C's history of drug abuse. His mother told her that Patient C used to take "all sorts of drugs" but was not taking any drugs other than alprazolam at the time. 6. Dr Gilhotra says she always conducts a mental state examination in these circumstances and she conducted one for Patient C on the first visit. There is no record of such an examination having been conducted in the clinical notes. All that is recorded is a brief history and the script. Dr Gilhotra said she should have written all that down. We are not satisfied that Dr Gilhotra conducted a comprehensive mental state examination. If she had, she would have recorded the results. 7. At that time, Dr Gilhotra was not aware that Patient C was also under the Opioid Treatment Program. Methadone can interact with benzodiazepines such as alprazolam resulting in profound sedation, respiratory depression, and sometimes death. 8. We agree with the expert, Dr Golding, that benzodiazepines such as alprazolam, are not first line agents for anxiety. Apart from dependence, side effects include drowsiness, cognitive impairment vertigo and delirium. Alprazolam is particularly dangerous when taken with other drugs of abuse. There is little, if any, justification for prescribing benzodiazepines beyond a few days. Patients on long-term benzodiazepines are likely to be dependent, even if doses are stable and they are not taking other psychoactive drugs. Patients with current or previous alcohol and drug problems are at increased risk of developing benzodiazepine dependence. 9. Section 2.2.4 of the Good Medical Practice: A Code of Conduct for Doctors in Australia (Medical Board of Australia, March 2014) states that good medical practice involves: Considering the balance of benefit and harm in all clinical-management decisions. 1. The opinion of other doctors working in the practice, seeing the same patient, was that the risk of prescribing alprazolam (or other members of the same drug family), was greater than the chance of benefit. We agree. The decision to prescribe alprazolam was not justified given the known problems of dependence associated with this medication. 2. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing S8 drugs to Patient C for a non-therapeutic purpose – Complaint 1.12 12. On 24 August 2020 and 22 September 2020, the practitioner inappropriately prescribed the schedule 8 drug alprazolam to Patient C in the quantities as set out in Schedule C, in a quantity and for a purpose not in accordance with a recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR. 1. Dr Gilhotra admits the particular. 2. Five days after the first visit on 24 August 2020, Patient C saw Dr Gilhotra again. At that consultation Patient C told Dr Gilhotra about his past history of misuse of anxiety medication. Patient C said that he wanted to get better so that he could care for his mother and come off alprazolam (Kalma) medication. Dr Gilhotra completed a mental health plan during which she became aware of his history of addiction. She referred Patient C to a psychiatrist and psychologist for further management. Dr Gilhotra stated that due to the COVID pandemic, most specialists were not readily available and were seeing patients by telehealth. 3. Patient C returned to see Dr Gilhotra on 22 September 2020. He had seen a psychologist but was still waiting to see a psychiatrist. Dr Gilhotra completed a GP Management Plan, referred Patient C to a dietician and provided him with a prescription for alprazolam reduced to ½ tablet bd prn (twice daily as needed). 4. Dr Gilhotra noted that the medical record on 22 September 2020 indicates three prescriptions for alprazolam. Dr Gilhotra said she did not give Patient C three scripts on the same day. She thinks this is a result of printer default and that only one script was given. It seems highly unlikely that Dr Gilhotra would have written three scripts on the same day. We accept Dr Gilhotra's evidence on this point. 5. Alprazolam is a member of the benzodiazepine family. Due to its rapid onset of action, alprazolam is often prescribed to treat panic disorders. 6. At the first consultation on 24 August 2020, Dr Gilhotra prescribed 50 tablets of alprazolam 2mg with instructions to take ½ to 1 tablet as required (PRN). That is sufficient for 50 or 100 days. On the next consultation, 29 days later, Dr Gilhotra prescribed a further 50 tablets of alprazolam with a dose of ½ a tablet twice a day as required. This is sufficient for 50 or 100 days. 7. We agree with Dr Golding that Dr Gilhotra prescribed alprazolam on 24 August 2020 and 22 September 2020 in a quantity and for a purpose not in accordance with a recognised therapeutic standard of what was appropriate in the circumstances. 8. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Prescribing benzodiazepines to Patient C in a quantity and for a purpose inconsistent with therapeutic standard – Complaint 1.13 13. Between 24 August 2020 - 27 October 2020, the practitioner inappropriately prescribed a combination of benzodiazepines, namely alprazolam and diazepam, in a quantity, dosage and for a duration that was not in accordance with a recognised therapeutic standard. 1. Dr Gilhotra admits the particular. 2. On 24 August 2020, as well as prescribing alprazolam, Dr Gilhotra prescribed another benzodiazepam – 25 tablets of 5mg diazepam, with instructions to take 5mg twice a day as needed. The recommended dose of diazepam is 2–5 mg as a single dose. Doses may be repeated up to a maximum of 10 mg daily. 3. Patients who ask to be prescribed a S4D medicine should disclose the quantity of any other S4D medicine with which they have been prescribed or supplied, within the last two months. Prescribers should ask patients about such previous supplies and note the response in their records. Other practitioners involved in the patient's care should be contacted. 4. Benzodiazepines are inherently dangerous: they are involved in more drug induced deaths than heroin and methadone combined. Prescribing both diazepam (a long acting benzodiazepine) and alprazolam (a short acting benzodiazepam) is not clinically indicated. The combination increases the risk of overdose and life threatening sedation. Requests from a patient for simultaneous prescriptions for both medications is a significant indication of drug dependence. 5. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing S8 drugs to Patient C without an authority – Complaint 1.14 14. On 24 August 2020 and 22 September 2020, the practitioner inappropriately prescribed the schedule 8 drug alprazolam in the quantities set out in Schedule C, without obtaining proper authority from NSW Ministry of Health, contrary to s 28 of the PTGA in that: (a) alprazolam is a type B drug of addiction, and was being prescribed for use by Patient C for a continuous period exceeding 2 months; and/or (b) alprazolam is a type C drug of addiction, and Patient C was a drug dependent person. 1. Dr Gilhotra admits the particular. 2. An authority from the NSW Ministry of Health is required to prescribe alprazolam for a drug dependent person or a non-drug dependent person who is prescribed alprazolam continuously for more than 2 months. 3. Patient C was known to have a history of drug dependence and Dr Gilhotra should have been aware that Patient C was a drug dependent person. That was evident from the clinical records of other doctors in the practice who documented his use of methadone for heroin dependence. For example, in 1995 and again in 2012, Patient C had a history of heroin use. In 2011 Patient C had requested alprazolam (Xanax) from another doctor at the practice. Dr Gilhotra should have realised that repeated requests for alprazolam is a 'red flag' for drug dependence. 4. Dr Gilhotra was also aware that Patient C was under the care of the Liver Clinic for Hepatitis C. Sharing or reusing other people's needles and syringes or other drug injecting equipment is the most common way that people in Australia get Hepatitis C. The history of Hepatitis C should have led to further enquiries about drug dependence. 5. Patient C had been listed on the (PBS based) ERRCD (Electronic Recording and Reporting of Controlled Drugs) as potentially dependent since 1998. The federal based ERRCD communicates with the NSW prescription shopping program. 6. Patient C had also been on the OTP (Opioid Treatment Program) since 1998. That program provides long term medical management of opioid dependent people in NSW. Dr Gilhotra said she did now know that Patient C was on that program until she received an email from the Pharmaceutical Regulatory Unit on 5 November 2020. Dr Gilhotra agreed that if she had known about Patient C's history of heroin use, she would not have prescribed alprazolam in August 2020. 7. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Prescribing S8 drugs to Patient C without consulting a psychiatrist or psychologist – complaint 1.15 15. On 24 August 2020 and 22 September 2020, the practitioner inappropriately prescribed the schedule 8 drug alprazolam in the quantities set out in Schedule C without first consulting with Patient C's treating psychiatrist or psychologist. 1. Dr Gilhotra admits the particular. 2. We agree with the expert witness, Dr Golding, that alprazolam should not have been prescribed on 24 August 2020 and 22 September 2020, without consultation with the psychologist and/or the psychiatrist involved in Patient C's care. 3. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Inappropriately prescribing venlafaxine, an S4 drug, to Patient C – Complaint 1.16 16. On 24 August 2020, 3 September 2020, 8 September 2020 and 7 October 2020, the practitioner inappropriately prescribed the schedule 4 drug venlafaxine in the quantities set out in Schedule C, in circumstances where: (a) venlafaxine was not indicated, (b) the practitioner did not first consult Patient C's treating psychiatrist or psychologist prior to initiating venlafaxine, an antidepressant medication, and (c) the overall quantity of venlafaxine prescribed to Patient C was excessive. 1. Dr Gilhotra admits the particular. 2. Venlafaxine is an anti-depressant medication which is sold under the brand name Effexor. The prescribing advice for this medication is that it is indicated for Major depression, generalised/social anxiety disorder and panic disorder. 3. Dr Gilhotra said she performed a mental state examination and found that Patient C had symptoms of depression and anxiety. In her view, Venlafaxine is most useful in patients with depression associated with anxiety. 4. No other doctor at the practice had prescribed venlafaxine to Patient C at least since 2001. In Dr Golding's view, the medical notes do not support a diagnosis of major depression or panic disorder that would justify the prescription of venlafaxine. We agree. We also agree with Dr Golding that Dr Gilhotra should have consulted with Patient C's treating psychiatrist or psychologist before prescribing venlafaxine. 5. The initial dose recommended to be prescribed ranges from 37.5mg/day (for panic disorder) to 75mg/day for other indications. The dose may be increased thereafter to a maximum of 225 mg/day. 6. On 24 August 2020, Dr Gilhotra prescribed 28 tablets of venlafaxine (Effexor) 37.5 mg XR with instructions to take one daily as required (0-1 OD). This was sufficient for at least 28 days. Ten days later, on the 3 September 2020, Dr Gilhotra prescribed another 28 tablets of 37.5 mg MR venlafaxine as Patient C came to 'refill' her medications, saying she had lost the script. Five days later, on the 8 September 2020, Dr Gilhotra prescribed a further 5 x 28 or 140 tablets of 75 mg MR venlafaxine with instructions to take one daily as needed. At this point, Patient C had been prescribed medication sufficient for six months over a two week period. Less than three months later, on the 27 October 2020, Dr Gilhotra prescribed 5 x 28 or 140 tablets of 150 mg MR venlafaxine which was to be taken each morning. 7. When questioned about why she prescribed these excessive quantities of venlafaxine, Dr Gilhotra replied that the medication was being controlled by Patient C's mother. Ultimately Dr Gilhotra agreed that she should have prescribed less. 8. These particulars are proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Patient D - oxycodone 1. Patient D was a man in his mid-twenties when he first saw Dr Gilhotra. He had been coming to the practice since June 2016. At the start of the patient medical record for Patient D, there is a warning identifying him as a doctor shopper. Dr Gilhotra believes this entry was made following a consultation with another doctor at the practice on 16 September 2020. 2. Oxycodone is an S8 drug. Inappropriately prescribing oxycodone to Patient D – Complaint 1.17 17. On 28 October 2019, the practitioner inappropriately prescribed the schedule 8 drug oxycodone to Patient D in the quantity as set out in Schedule D, in circumstances where: (a) oxycodone is not suitable as "as required" ("prn") pain relief (b) oxycodone was not indicated because: i. Patient D presented with soft tissue related pain, and ii. Other forms of pain relief had not been trialled. 1. Dr Gilhotra admits the particular. 2. Dr Gilhotra saw Patient D for the first time on 28 October 2019. She prescribed oxycodone. 3. Patient D told Dr Gilhotra that he had fallen on a wet surface the previous day. He said he had acute pain in his lower back and left hip. Dr Gilhotra noted that his mother had to assist him to walk into the room. On examination, Dr Gilhotra recorded that Patient D was tender in the lower back and left hip, and had muscle spasms. Dr Gilhotra referred Patient D for an X-ray of his spine and left hip. The X-ray reported no acute injury or fracture in the hip, pelvis or lumbar spine. Dr Gilhotra told Patient D that given his level of pain he should go to hospital, however he declined to do so. 4. When asked why she prescribed an S8 drug, rather than paracetamol, for a soft tissue injury, Dr Gilhotra said that either Patient D or his mother told her that he suffered from abdominal symptoms such as cramps and nausea if he took Panadeine Forte or Endone. Dr Gilhotra agreed that both oxycodone and Endone are morphine derivates and that the primary ingredient of Endone is oxycodone hydrochloride. We are satisfied that Dr Gilhotra knew when she prescribed oxycodone that Endone had the same primary ingredient, but that she did not question Patient D about his claimed intolerance for Endone. 5. Dr Golding points out that the prescribing instructions for opioid treatment include that the condition must require daily, continuous, long term opioid treatment and the patient must have cancer pain, or inadequate pain management with non-opioid analgesics or must be unable to use non-opioid or other opioid analgesics due to contraindications or intolerance. The risk of dependence is high and treatment is not suitable for 'as-required' pain relief. 6. Dr Gilhotra prescribed this medication 'as required' for soft tissue related pain. Soft tissue injury is not an indication for prescribing this medication, and the dose and quantity was excessive. There had been no trial of other forms of pain relief before prescribing this S8 drug of dependence. 7. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Inappropriately prescribing Oxycodone to Patient D – Complaint 1.18 18. On 30 October 2019, the practitioner inappropriately prescribed the schedule 8 drug oxycodone to Patient D in the quantity as set out in Schedule D, in circumstances where: (a) Patient D had been prescribed oxycodone two days earlier, on 28 October 2019, in the manner set out in particular 17, (b) oxycodone is not suitable as "as required" ("prn") pain relief, (c) oxycodone was not indicated because: i. Patient D presented with soft tissue related pain, and ii other forms of pain relief had not been trialled. 1. Dr Gilhotra admits the particular. 2. On the 30 October 2019, two days after the first script, Dr Gilhotra prescribed another 20 tablets of oxycodone. This time Dr Gilhotra increased the dose from 10mg to 20mg to be taken twice a day as required (OMEDD of 600 mg). Dr Gilhotra said that she prescribed oxycodone because Patient D was still in a lot of pain. She acknowledged that it was possible that she did not look at her notes from 28 October 2019 when prescribing oxycodone again two days later. We find that Dr Gilhotra did not look at her notes. She agreed that if Patient D had taken 28 tablets of oxycodone in 2 days, that would have been excessive. 3. Dr Gilhotra referred Patient D for physiotherapy under an enhanced primary care management plan. 4. We agree with the expert witness, Dr Golding, that the prescription for oxycodone 20mg "as required" for soft tissue related pain is significantly below the relevant standard. In addition, there had been no trial of other forms of pain relief before prescribing S8 drugs of dependence. There was no recommendation for regular paracetamol which should have been the first step in treating acute pain. 5. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing oxycodone to Patient D for a non-therapeutic purpose – Complaint 1.19 19. Between 13 November 2019- 7 September 2020, the practitioner inappropriately prescribed the schedule 8 drug oxycodone to Patient D in the quantities as set out in Schedule D, in a quantity and for a purpose not in accordance with a recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR. 1. Dr Gilhotra admits the particular. 2. The recognised therapeutic standard for prescribing oxycodone is set out under Complaint 1.17. The primary treatment is for cancer pain. 3. Dr Gilhotra prescribed oxycodone to Patient D during this period of nearly 10 months. Below we provide examples of the quantities prescribed during various periods. 4. During the 16 days from 28 October 2019 to 13 November 2019 Dr Gilhotra prescribed oxycodone on three occasions and another doctor prescribed oxycodone on one occasion. The total number of tablets prescribed was 96 tablets. That is a total OMEDD of 2460mg – an average OMEDD per day of 150 mg. The upper OMEDD of safety is 100mg. Other expert groups recommend that opioids should not be prescribed above 60mg OMEDD without pain medicine specialist endorsement. Dr Gilhotra does not know whether she saw in the notes that another doctor had prescribed oxycodone on 5 November 2019, but agreed that she had prescribed a lot more than the patient needed. 5. We set out the subsequent history of prescribing oxycodone below. 6. On 6 November 2019 Dr Gilhotra reviewed Patient D for a wart on his foot. Dr Gilhotra checked his X-ray and told him to continue physiotherapy and pain medication. A week later, on 13 November 2019, Patient D complained of an exacerbation of his back pain. He had seen his physiotherapist. Dr Gilhotra suggested rest and continuing with his pain medication. She prescribed 28 oxycodone 20mg tablets (OMEDD of 840mg). 7. Patient D saw another doctor at the practice on 11 December 2019 regarding a recurrent herpes simplex virus (HSV-2) on his finger. He was advised to use Valtrex and was also prescribed 14 tablets of OxyContin 20mg (oxycodone). 8. On 10 February 2020, Patient D attended to see Dr Gilhotra with radiating mid back pain after lifting heavy objects two days previously. On examination Dr Gilhotra recorded muscle spasm and recommended pain medication, physiotherapy and massage. She prescribed OxyContin 20mg (oxycodone). 9. On 2 March 2020 Patient D came with a history of an upper respiratory tract infection (URTI) and was diagnosed with tonsilitis. OxyContin was prescribed for Patient D's back pain which he said was worse due to coughing. 10. Patient D continued to attend the practice with back pain. On 1 June 2020 Patient D informed Dr Gilhotra that in addition to his upper back pain he was now getting lower back pain radiating to the groin on the right side. He was unable to stand for long periods, had pins and needles and was in pain. On examination, Dr Gilhotra recorded "back sl (slight) sore no tenderness, no neurological def (deficit)" (Words in brackets added.) Dr Gilhotra referred Patient D for a CT scan of his lumbosacral joint and coccyx. She suggested a review of pain killers but prescribed oxycodone. 11. When asked whether there was any new event or trauma associated with Patient D's presentation on 1 June 2020, Dr Gilhotra said that it was a combination of previous injuries and standing for long periods while working. She agreed that despite the fact that Patient D reported pins and needles, there was no deficit in power or movement. 12. The notes for 1 June 2020 record that Endone tablets were also prescribed but Dr Gilhotra was adamant that she would never have prescribed Endone with oxycodone. She said that she "might have clicked wrongly, then realised and might have discarded it". While there is no notation that the script had been deleted or discarded, Dr Gilhotra is sure that she did not provide Patient D with a script for Endone. 13. There is no particular in the Complaint alleging that Dr Gilhotra had prescribed oxycodone and Endone to Patient D on 1 June 2020. Consequently, there is no formal admission or denial of that alleged conduct. In those circumstances, the veracity of Dr Gilhotra's denial goes only to her credibility. For the following reasons we accept Dr G Gilhotra's version. There is only a single occasion when the notes record that Dr Gilhotra prescribed both oxycodone and Endone to Patient D. Dr Gilhotra did not normally prescribe Endone. In the records for the previous visit on 21 April 2020 another doctor is recorded as having prescribed oxycodone and Endone. While it is possible that Dr Gilhotra merely repeated the same scripts on 1 June 2020, there is no independent evidence that the script was presented at a pharmacy. We also take into account the strength of Dr Gilhotra's denial in circumstances where she has admitted almost every other particular in the complaint. 14. Patient D returned to see Dr Gilhotra on 9 June 2020 saying he had lost his referral for the CT scan and his medications. Dr Gilhotra again prescribed oxycodone. 15. On 13 July 2020 Patient D attended with right calf pain and lower back muscular pain. According to Dr Gilhotra, he was in obvious pain and his right calf was tender. She referred him for a Doppler ultrasound of his right calf and suggested that he go to hospital if his symptoms deteriorated. She prescribed OxyContin 20mg (oxycodone) for pain. 16. According to the medical records Patient D attended to see two other doctors at the practice on 27 July 2020 complaining of strong back pain. The first doctor indicated that he was not able to prescribe OxyContin (oxycodone). The second doctor prescribed OxyContin after checking that he was not listed with the prescription shopping program. Dr Gilhotra said it is her usual practice to look at the previous records but if it is a very busy day, she may not have time to do so. We find that on this occasion Dr Gilhotra did not check the previous records for Patient D. 17. On 10 August 2020 Patent D attended with an infected right middle finger. It was inflamed and sore. Dr Gilhotra prescribed antibiotics and 28 tablets of oxycodone. She did not refer to back pain in the record for that consultation but said that was a mistake. Dr Gilhotra agreed that finger pain and arm pain do not require oxycodone and if she had prescribed oxycodone for those symptoms, it would have been grossly inappropriate. 18. In a telehealth consultation with Dr Gilhotra on 11 August 2020, Patient D told her that he had lost his medication. This was confirmed by Patient D's mother when Dr Gilhotra spoke to her on the same telehealth consultation. Dr Gilhotra prescribed another 28 tablets of oxycodone. She agreed that prescribing 28 tablets two days in a row is an example of serious overprescribing. Dr Gilhotra said that she must not have checked the notes for the previous day and that it was "possible" that she was not bothered by the quantity she was prescribing. 19. On 18 August 2020, Patient D was seen for pain in the shoulder and arm. He was physically assessed and Dr Gilhotra ordered some blood tests. No prescriptions were provided. 20. Nine days later, on 20 August 2020, Patient D came for a review complaining of sores on the roof of his mouth. There is no reference to back pain in the notes for this consultation. Dr Gilhotra said when prescribing oxycodone that day her main concern was back pain but agreed that she did not refer to that in the notes. 21. On 7 September 2020, a year after starting to prescribe oxycodone to Patient D, he complained of even worse pain from a fall 12 months previously. Dr Gilhotra wrote in the patient records "discussed physical therapy and dependency on pain killers". Dr Gilhotra said that her concern at the time was that Patient D had been on medication for a long time and could be becoming dependent. During the same consultation, Dr Gilhotra wrote a script for 28 tablets of oxycodone 20mg. 22. Patient D saw another doctor at the practice on 16 September 2020. He was complaining of three days of severe elbow pain. The doctor contacted the prescription shopping program which identified multiple scripts and prescribers of OxyContin 20mg and 40mg. The doctor gave Patient D a referral to the Drug and Alcohol team. 23. On 5 November 2020 Dr Gilhotra received an email from the Pharmaceutical Regulatory Unit (PRU) advising that Patient D appeared to be on the NSW Opioid Treatment Program, and that prescribing centrally acting agents (S4Ds and S8s), including Panadeine Forte (S4 containing codeine) should be with the approval and liaison of the OTP prescriber. 24. On 6 November 2020, Dr Gilhotra said she rang the OTP prescriber who told her that he had not seen Patient D. Dr Gilhotra received an email from the PRU on the same day advising her that the OTP prescriber was approved but Patient D had not initiated treatment. The PRU advised Dr Gilhotra that Patient D is drug dependent and she would require an authority to continue prescribing. Dr Gilhotra was also told that if she needed help managing the patient, she should contact the NSW Drug and Alcohol Specialist Advisory Service (DASAS). Dr Gilhotra relayed this information to Patient D when he attended to see her on 9 November 2020. 25. When Patient D came to see Dr Gilhotra on 3 December 2020, he told her that he was off OxyContin by detoxing himself at home as he was ashamed to go to the OTP program. He said he was taking over the counter pain medication and also participating in physical therapy. 26. As for the purpose of prescribing oxycodone, Dr Gilhotra consistently said that she was prescribing it for back pain. When asked about the source of the pain, she did not know. All that she can recall is that she wanted to help Patient D with his pain. According to Dr Golding, the prescriptions written by Dr Gilhotra for oxycodone were inappropriate. There were no clinical indications identified to justify their prescription and the strength and quantities were excessive. We agree. 27. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing oxycodone to Patient D without authority – Complaint 1.20 20. Between 28 October 2019 - 7 September 2020, the practitioner inappropriately prescribed the schedule 8 drug oxycodone to Patient D in the quantity as set out in Schedule D in circumstances where: (a) the practitioner knew or ought to have known Patient D was drug dependent; and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health, contrary to s 28(3) of the PTGA. 1. Dr Gilhotra admits the particular. 2. We have previously set out the requirements for obtaining an authority before prescribing an S8 drug. 3. Dr Gilhotra gave evidence that she did not suspect that Patient D was drug dependent. She said she knew his family and he was working in a steady job. He was not the sort of person to ask for narcotics. Thinking back, Dr Gilhotra said Patient D was probably taking more pain killers than he should have been taking just in order to function. 4. There were many red flags suggesting drug dependence including: attending more often than necessary to fill scripts, claiming that he had lost the script or the medication and complaining of pain that was disproportionate to the nature of the injury. Dr Gilhotra said she did not recognise these circumstances as red flags at the time. One reason for that is that Patient D's mother confirmed that he had lost his medication. However, Dr Gilhotra failed to make a note of the reason she accepted his claims, especially when they were given in a tele-health consultation. Looking back, Dr Gilhotra conceded that Patient D must have been telling her lies. She admits that that she should have stopped prescribing oxycodone after three months and added that, "[W]e all make mistakes". 5. Dr Gilhotra prescribed S8 medications for almost 12 months in circumstances where she knew or ought to have known Patient D was drug dependent. Dr Gilhotra should have obtained an authority to continue to prescribe. 6. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Failing to refer Patient D for secondary assistance – Complaint 1.21 21. Between 28 October 2019 - 7 September 2020, the practitioner failed to make suitable referrals for secondary assistance in relation to Patient D, such as: (a) physiotherapy, or (b) orthopaedic review. 1. Dr Gilhotra admits the particular. 2. Despite requesting opioids for around nine months, mainly for backpain, Dr Gilhotra did not refer Patient D to physiotherapy or for specialist orthopaedic review. She did not record a management plan to reduce Patient D's use of pain killers. Dr Gilhotra agreed that she should have been trying to wean Patient D off this medication from the beginning and that she made a lot of mistakes. 3. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Inappropriately prescribing Patient D with valacyclovir – Complaint 1.22 22. On 20 August 2020, the practitioner inappropriately prescribed an ineffective dose of valacyclovir for the treatment of herpes simplex mouth ulcers. 1. Dr Gilhotra admits the particular. 2. On 20 August 2020 Patient D attended for sore mouth and tongue. Dr Gilhotra diagnosed herpes simplex infection and prescribed Valtrex tablets 500mg (valacyclovir). Dr Golding agreed that the recommended treatment is the anti-viral medication valacyclovir. The dosage of valacyclovir for mouth ulcers is as follows: The recommended dosage of Valtrex for the treatment of cold sores is 2000 mg twice daily for 1 day with the second dose taken about 12 hours (no sooner than 6 hours) after the first dose. 1. Patients should be instructed that treatment for cold sores should not exceed one day (two doses) and that their doses should be taken 12 hours apart. The valacyclovir dosage prescribed by Dr Gilhotra was 500mg twice a day for 10 days. This is the dose recommended for treatment of recurrent genital herpes and is not an effective dose for treatment of oral herpes. 2. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Inappropriately prescribing Patient D with Panadeine Forte – Complaint 1.23 23. On 14 September 2020, the practitioner inappropriately prescribed the schedule 4D drug paracetamol 500mg/codeine 30mg in circumstances where: (a) the practitioner had prescribed a two-week supply of oxycodone to Patient D seven days prior, and (b) it would have been more appropriate to cease prescribing opioids to Patient D and refer Patient D to a pain specialist. 1. Dr Gilhotra admits the particular. 2. On 7 September 2020 Dr Gilhotra recorded that she discussed dependency on pain medication. She advised Patient D to try Endep for his chronic pain and sleep issues, with the aim of weaning him off oxycodone. Dr Gilhotra prescribed 28 x Oxycontin 20 mg tablets to Patient D. That was a two-week supply. 3. A week later, when Patient D returned to see Dr Gilhotra on 14 September 2020, he told her that he had been taking Endep but it had been making him drowsy. Dr Gilhotra refused to provide him with a further prescription of oxycodone. Instead, she suggested that he try Panadeine Forte (a combination of paracetamol and codeine) and gave him a prescription for 10 tablets. She also advised him to go to hydrotherapy and physiotherapy. 4. When asked why she prescribed Panadeine Forte when her evidence had been that he could not tolerate it, she said that over time, people can try it again to see if it works. That was not a convincing answer. Either Patient D never told Dr Gilhotra that he was intolerant to Panadeine Forte or he told her, but she knew it was a ploy to get her to prescribe oxycodone. Dr Gilhotra advised Patient D that if he was in pain, he should come back. 5. We agree with Dr Golding that paracetamol is an effective and safe medication when used in normal doses. Codeine is associated with overdose and has a high rate of misuse. If Dr Gilhotra was concerned about excessive prescription of opioids, the appropriate response would have been to stop prescribing opioids and refer Patient D to a chronic pain specialist - not to change the type of opioid. 6. It was put to Dr Gilhotra that in 2019 she was aware that oxycodone was the primary active ingredient of Endone. Initially she said that she knew that oxycodone and Endone were both "morphine based" but later she said that she did not know and then that she was not sure. Given her initial response and the fact that her later responses were non-committal and self-serving, we find that Dr Gilhotra did know in 2019 that oxycodone was the primary active ingredient of Endone. 7. This particular is proven. Dr Gilhotra's conduct was significantly below the relevant standard. Patient E 1. Dr Gilhotra first saw Patient E with his mother on 8 November 2018 when he was 17 years old. She prescribed paliperidone, an antipsychotic agent used for the treatment of schizophrenia and acute schizoaffective disorder. Prescribing Patient E with paliperidone (an S4D drug) when it was not indicated or suitable – Complaint 1.24 24. On 8 November 2019, the practitioner inappropriately prescribed the schedule 4 drug paliperidone to Patient E in the quantity as set out in Schedule E, in circumstances where: (a) paliperidone was not indicated because Patient E did not have a diagnosis of schizophrenia and/or acute schizoaffective disorder exacerbation, and (b) the practitioner had not discussed the suitability of paliperidone with Patient E's consulting psychiatrist prior to prescribing paliperidone. 1. Dr Gilhotra admits this particular. 2. Patient E had been coming to the practice since January 2011. Under "current medical history" Patient E's clinical records state that he was diagnosed with attention deficit hyperactivity disorder (ADHD) in 2009 and Autism Spectrum Disorder in 2012. 3. Another doctor at the practice had seen Patient E a month earlier, on 5 October 2018. That doctor prescribed 28 tablets of paliperidone 3 mg MR (modified release) with five repeats. Apart from the prescription issued by this doctor, no other doctor at the practice had prescribed paliperidone for Patient E. Dr Gilhotra's explanation for prescribing paliperidone is that Patient E had come for "refil meds". Patient E's mother told her that her son's psychiatrist had prescribed that medication but he was away at the time. Patient E's mother showed Dr Gilhotra the medication list. Dr Gilhotra reviewed the practice records and saw a letter from a paediatrician dated 5 May 2018 confirming that Patient E was on this medication. 4. There is no record that Patient E had a diagnosis of schizophrenia or acute schizoaffective disorder. In addition, paliperidone is listed as not suitable for children under 18 years of age. Dr Gilhotra should not have prescribed paliperidone because it was not indicated. If she was contemplating prescribing it, she should have discussed the suitability of paliperidone with Patient E's consulting psychiatrist. 5. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Prescribing dexamphetamine (an S8 drug) to Patient E with no clinical indication and no authority – Complaint 1.25 25. On 11 March 2019, the practitioner inappropriately prescribed the schedule 8 drug dexamphetamine to Patient E in the quantity as set out in Schedule E, in circumstances where: (a) the practitioner did not obtain the proper authority from NSW Ministry of Health to prescribe a Type A drug of addiction, contrary to s 28(1) of the PTGA, (b) dexamphetamine was not clinically indicated because: i. Patient E had not been diagnosed with narcolepsy, and ii. Patient E's purported diagnosis of attention deficit hyperactivity disorder had not been confirmed. 1. Dr Gilhotra admits the particular. 2. On 11 March 2019, Dr Gilhotra prescribed Patient E with dexamphetamine, an S8 drug. Dexamphetamine cannot be prescribed in NSW without an authority from NSW Health. A direction from a specialist to prescribe this medication is not sufficient authority. Dr Gilhotra did not obtain an authority. 3. Dr Gilhotra accepts that she should have obtained an authority but explains her failure to do so by saying Patient E was "in between" psychiatrists. Dr Gilhotra said she completed a mental health plan for Patient E and referred him to an adult psychiatrist. She prescribed dexamphetamine in the interim. Dr Gilhotra acknowledged that she is bound by the requirement to obtain an authority before prescribing, but said that "patient care and health" is also important. We assume she meant by this comment that it was important for patient care that Patient E's supply of dexamphetamine should not be interrupted or delayed by the need to see an adult psychiatrist. Nevertheless, an authority was required. 4. The second particular is that dexamphetamine was not clinically indicated. Dexamphetamine is prescribed for the treatment of ADHD and narcolepsy, a sleep disorder. Patient E had not been diagnosed with narcolepsy and the diagnosis of ADHD had not been confirmed. The Health Summary for Patient E states that he has had ADHD since 2009. A year later another practitioner records Patient E's mother as saying that Patient E had 'aspergers syndrome and adhd'. Dr Gilhotra said she cannot remember what the indication was for prescribing dexamphetamine but a child psychiatrist had started Patient E on that medication. 5. We agree with Dr Golding, the expert witness, that there is no record that the diagnosis of ADHD had been confirmed. If it had been confirmed, it is not clear when this occurred and whether it had been updated or reviewed by a specialist since it was "diagnosed" in 2009. 6. Although not particularised as part of the complaint, we note that the quantity of dexamphetamine Dr Gilhotra prescribed is also an issue. Dr Gilhotra gave Patient E 100 X 5mg tablets with 5 repeats. That is a total of 500 tablets or a 250 day supply. Dr Gilhotra said she did not realise there were so many repeats and that that is the script that comes up on the computer. However, no other doctor in the practice had previously prescribed Patient E five repeats for that medication. Dr Gilhotra agreed that if she had been taking appropriate care, she would not have provided a script for that quantity of dexamphetamine. 7. This particular is proven. Dr Gilhotra's conduct is significantly below the relevant standard. Patient F - Alprazolam 1. Patient F first attended the practice in 2006 when he was in his late 30s. At the time he was being treated by a psychologist for post-traumatic stress disorder (PTSD) and was also receiving cognitive behaviour therapy (CBT). Patient F was taking Coversyl Plus for elevated blood pressure and Zoloft (sertraline) 200 mg daily for depression. Patient F was first prescribed benzodiazepines on 19 August 2011 when he had difficulty sleeping. His medical history includes diabetes, anxiety, PTSD, hypertension as well as chronic knee and back pain. 2. On 4 March 2020, 11 May 2020, and 22 October 2020, Dr Gilhotra prescribed the S8 drug alprazolam to Patient F. Patient F returned to see Dr Gilhotra on 19 November 2020 at which time he told her that he was reducing alprazolam and taking Endep (amitriptyline). The last time Dr Gilhotra saw Patient F was on 7 January 2021. At that consultation he told her that his blood pressure had been fluctuating for the last month and he had been having palpitations. He requested alprazolam but Dr Gilhotra refused to provide him with that medication. Prescribing alprazolam to Patient F without confirming the need to do so – Complaint 1.26 26. On 4 March 2020, 11 May 2020, and 22 October 2020, the practitioner inappropriately prescribed the schedule 8 drug alprazolam to Patient F in circumstances where: (a) the practitioner failed to confirm the need for an ongoing prescription of alprazolam with Patient F's treating psychiatrist, psychologist, or another practitioner within the medical practice. 1. Dr Gilhotra admits the particular. 2. Dr Gilhotra saw Patient F for the first time on 4 March 2020. His presenting symptoms were anxiety and depressive issues related to grief. On reviewing the records, Dr Gilhotra noted that he had been prescribed alprazolam, and flunitrazepam (another benzodiazepine) on a semi-regular basis. At this consultation she reviewed Patient F's chronic health conditions and referred him to a physiotherapist for left knee pain under a chronic disease management plan. She also wrote a script for alprazolam, noting that the supply should be restricted to every 21 days. 3. The clinical notes of the first consultation with Dr Gilhotra record a background of depression, treatment by a psychiatrist and a General Practice Mental Health Plan. However, there is no indication in the notes that alprazolam had been prescribed for over two years. Dr Gilhotra should have clarified the requirement for ongoing prescription of alprazolam with Patient F's consulting psychiatrist or one of the other doctors in the practice who had previously prescribed alprazolam. 4. On 11 May 2020, Patient F came for a referral for physiotherapy after he had injured his left knee, following a fall the previous month. As he continued to show symptoms of anxiety, Dr Gilhotra provided another prescription for alprazolam, again noting that the supply should be restricted to every 21 days. 5. Patient F returned to see Dr Gilhotra on 19 May 2020, 15 June 2020 and 17 August 2020. No benzodiazepines were prescribed on those dates but another doctor in the practice prescribed alprazolam on 17 August 2020. 6. On 22 October 2020 Patient F told Dr Gilhotra that he had commenced Cognitive Behaviour Therapy and was feeling slightly better. He was still grieving and experiencing poor sleep. Dr Gilhotra discussed dependency issues and asked him to try other medications. She said Patient F agreed to reduce the dose of alprazolam and take Endep at night for sleep. She also advised him to continue with counselling. 7. Dr Gilhotra notes that the medical record on 22 October 2020 indicates three prescriptions for Kalma (alprazolam). She thinks that is the result of a printer default and that only one script was given to the patient. For the same reasons we have given in relation to other scripts, we are satisfied that Dr Gilhotra did not write three scripts on the same day. 8. This particular is proven. Dr Gilhotra's conduct falls significantly below the relevant standard. Prescribed alprazolam to Patient F when he was drug dependent and without an authority – Complaint 1.27 27. On 4 March 2020, 11 May 2020, and 22 October 2020, the practitioner inappropriately prescribed the schedule 8 drug alprazolam to Patient F in the quantities as set out in Schedule F in circumstances where: (a) the practitioner knew or ought to have known Patient F was drug dependent, and (b) the practitioner did not obtain the proper authority from NSW Ministry of Health, contrary to s 28(3) of the PTGA. 1. Dr Gilhotra admits the particular. 2. We have set out the requirements to obtain an authority for alprazolam under Complaint 1.2. 3. At the time of the consultation on 4 March 2020, Dr Gilhotra said she did not think Patient F was drug dependent. Now she acknowledges that he could have been dependent as he had been taking alprazolam for more than four years. When asked why she prescribed a quantity of fifty 2mg tablets of alprazolam with two repeats on 11 May 2020, Dr Gilhotra said she just printed off the script because he was taking it regularly. She agreed that doing so was not appropriate. Dr Gilhotra also agreed that, if a patient has ongoing mental health issues and S8 drugs are being prescribed, it is important to have a targeted discussion about the patient's mental health. 4. When asked why Patient F's psychiatrist could not have prescribed the medication, Dr Gilhotra did not have an explanation. 5. We agree with Dr Golding's opinion that Dr Gilhotra should have recognized that after prescribing alprazolam for four years, Patient F was highly likely to be drug dependent and therefore an authority was required from NSW Health. 6. This complaint is proven. Dr Gilhotra's conduct is significantly below the standard. Complaint 1 repeated and relied on as a course of conduct 1. The conduct in any of Particulars 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and/or 26 of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. 2. There is no need to make a finding about this particular as we have found that each individual particular is proven. Complaint Two – inadequate records Dr Gilhotra is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i. contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the Regulation"). Patient A 1. The practitioner failed to maintain adequate medical records for Patient A in accordance with the requirements of r 6 of the Regulation in that the records lacked adequate detail about a. treatment plan/s for Patient A. 1. Dr Gilhotra admits the particular. 2. Rule 6(1) of the Regulation provides that: 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. 1. Schedule 4 to the Regulation further provides that: 3 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 1. Dr Gilhotra admits that she did not record any details of her physical assessment or findings for Patient A. She agreed that clear and accurate medical records are important in the overall management of a patient, especially when prescribing S8 drugs. 2. We agree with Dr Golding's opinion that Dr Gilhotra has not documented a long-term treatment plan that would guide decision making by other medical practitioners. There is insufficient information concerning Patient A's case to allow another medical practitioner to continue management of his care. 3. This particular is proven. Dr Gilhotra's conduct is in breach of section 139B(1)(b) of the National Law and amounts to unsatisfactory professional conduct. Patient B Dr Gilhotra is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: i. contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the Regulation"). 2. The practitioner failed to maintain adequate medical records for Patient B in accordance with the requirements of r 6 of the Regulation in that the records lacked adequate detail about a. Patient B's medical history, including noting the period for which Patient B had previously been prescribed opioids, b. examinations performed by the practitioner, and c. findings about the cause of Patient B's chronic pain. 1. Dr Gilhotra admits the particular. 2. Dr Gilhotra said Patient B told her he had had chronic back pain for more than five years. She said she thinks he was in an accident, but cannot recall. Dr Gilhotra admitted that her record of this consultation does not enable a person to understand the source or intensity of the pain. 3. We agree with Dr Golding that, as Patient B was requesting opioids on his first visit with Dr Gilhotra, she should have taken a comprehensive history (including the period for which Patient B had previously been prescribed opioids), conducted a physical examination and come to a view as to the cause of the pain. 4. This particular is proven. Dr Gilhotra's conduct is in breach of section 139B(1)(b) of the National Law and amounts to unsatisfactory professional conduct. The conduct in any of Particulars 1 and 2 of Complaint Two is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. 1. There is no need to make a finding about this particular as we have found that each individual particular is proven. Complaint Three – improper or unethical conduct Dr Gilhotra is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. On 10 September 2020, prescribed fentanyl to Patient A in circumstances where the practitioner had received a telephone call from Kim Dolan of the Pharmaceutical Regulatory Unit on 9 September 2020 warning the practitioner that Patient A was suspected by NSW Police to have been diverting fentanyl, and advising the practitioner not to continue prescribing fentanyl to Patient A. 1. Dr Gilhotra denies that she engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Dr Gilhotra does not admit the particular to the extent that she understood the direction to be to no longer prescribe 100mcg patches of fentanyl. The following day Dr Gilhotra prescribed half the previous dose of Durogesic and half the previous dose of oxycodone to Patient A. Definition of improper and unethical conduct 1. The kind of conduct described in s 139B(1)(a) relates to Dr Gilhotra's "knowledge, skill or judgement" whereas s 139B(1)(l) identifies "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". The words "improper" and "unethical" are not defined in the National Law. They have their ordinary English meaning, but dictionary definitions can provide a guide: Health Care Complaints Commission v Little [2016] NSWCATOD 146. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]: The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". 1. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." Factual findings 1. The only significant factual issue in dispute is Dr Gilhotra's understanding of what Ms Dolan told her during a telephone call on 9 September 2020. 2. 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]. That means that when making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings and the gravity or seriousness of the allegations. We should not be reasonably satisfied that something has happened or that Dr Gilhotra had a particular motivation if the allegation is only supported by "inexact proof, indefinite testimony or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. 3. Ms Dolan is the Principal Pharmaceutical Officer at the NSW Ministry of Health. The Unit is responsible for the administration and enforcement of the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW). 4. The Commission alleges that Ms Dolan told Dr Gilhotra to stop prescribing fentanyl because Patient A was under investigation for diverting drugs. The Commission also submits that Dr Gilhotra understood what Ms Dolan was telling her but did not comply. Dr Gilhotra says she must have misunderstood Ms Dolan because she thought that she had told her not to prescribe 100mcg of Durogesic (fentanyl). 5. In September 2020, Ms Dolan received information that Patient A had telephoned a pharmacy in regional NSW to order 30 Durogesic patches 100mcg and 28 tables of oxycodone 80mg. Ms Dolan phoned the police station in the regional town and was told that Patient A was involved in the illegal supply of fentanyl and oxycodone. 6. On 9 September 2020 Ms Dolan phoned Dr Gilhotra. Ms Dolan does not appear to have made a note of the conversation at the time other than recording Dr Gilhotra's name and phone number in her paper diary. In an unchallenged statement dated 7 June 2023, Ms Dolan states that she would have asked Dr Gilhotra questions about the prescribing and then advised her to "cease prescribing" given her concerns and advice from police that it appeared that Patient A was diverting the drugs. 7. Dr Gilhotra said that she was at home when she received the phone call from Ms Dolan. She remembers receiving the call but not every detail of the conversation. She does not remember Ms Dolan saying that Patient A was diverting the drugs. All she remembers is that Ms Dolan said Patient A was under investigation and not to prescribe 100mcg of Durogesic. She conceded that it is possible that Ms Dolan said Patient A was under investigation for diversion, and that she should not prescribe OxyContin or Durogesic, but does not remember her saying that. Dr Gilhotra's consistent response was that she must have misunderstood what Ms Dolan had told her. 8. The following day, 10 September 2020, at 8.25 am Patient A had a consultation with Dr Gilhotra. The clinical notes for that consultation state that: Discussed meds, told him that Kim from ministry of health rang yesterday, that he has been getting Rx (scripts) for 150 patches each time, says work in Iluka mines, has Dr Jacob visiting for meds, told him will not write till gets letter from specialist, spoke to Kim from ministry of health says can't have 100mcg,seen again discussed, has DM (diabetes mellitus) meds from SA, need pain killers, told can (?can't) give Rx (script) till grew (?seen) by pain specialist and has letter (Words in brackets added.) 1. The words "can't have 100mcg" made the day after the phone call, is said to support Dr Gilhotra's evidence that Ms Dolan merely told her not to prescribe 100mcg of fentanyl. Dr Gilhotra also wrote in the notes "told him will not write till gets letter from specialist". She obviously changed her mind about that because she prescribed five fentanyl patches 50mcg/hour (instead of ten) and half a dose of oxycodone, that is 28 oxycodone 40mg tablets. Dr Gilhotra said she wrote the half dose script for fentanyl because Patient A was still in pain and she could not take him off the medication straight away. He needed to see a specialist for further management. 2. In assessing the reliability and the plausibility of each witnesses' version of events, we take into account that Ms Dolan was not required for cross-examination. Her evidence was clear and unequivocal. She told Dr Gilhotra to cease prescribing. 3. Dr Gilhotra has not received other complaints about disregarding advice from regulatory authorities and did not try to hide what she was doing. However, neither of those circumstances is significance. It is not plausible that Dr Gilhotra understood Ms Dolan to mean that she could continue prescribing Patient A half the amount of S8 medication that she had been prescribing. We are satisfied that Dr Gilhotra understood that Ms Dolan told her to stop prescribing fentanyl but that she deliberately ignored that directive and prescribed half a dose. She did so because she thought Patient A was still in pain and was reluctant to take him off the medication straight away. 4. In the circumstances of this case, deliberately not complying with a direction given by a representative from the regulatory authority is unethical and improper. It is essential to the smooth operation of the system of regulation and discipline that practitioners follow directions given by regulatory authorities, especially when the health and safety of the community is at risk. 5. On 20 October 2020 the Ministry of Health emailed Dr Gilhotra confirming their advice to "cease prescribing fentanyl and oxycodone preparations to [Patient A] immediately" as "these substances are being diverted as indicated by New South Wales Police Force." Since receiving that email, Dr Gilhotra has not prescribed S8 drugs to Patient A. 6. This complaint is proven. Dr Gilhotra's conduct is improper and unethical. Complaint Four – professional misconduct Dr Gilhotra is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration 1. 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 Dr Gilhotra guilty of professional misconduct, we have power to suspend or cancel her registration although we are not obliged to do so: National Law, s 149C(1)(b). 2. Dr Gilhotra admits that she is guilty of professional misconduct in that she engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation. 1. Complaints 1 & 3 and the particulars thereof are repeated and relied upon individually and cumulatively; and 2. Complaints 1, 2 and 3 and the particulars thereof are repeated and relied upon cumulatively. 1. Dr Gilhotra relies on the responses to complaints and particulars as set out above. 2. Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen (2017) 95 NSWLR 334; [2017] NSWCA 186 at [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." 1. The seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public. 2. The length of time and the number of consultations involved is a factor in determining the seriousness of the conduct. She saw Patient A regularly for about two years. There was a single consultation with Patient B and two consultations with Patient E. For the remaining three patients, Dr Gilhotra treated each of them for a period of 12 months or less. Six patients (Patients A, B, C, D, E and F) is very few compared with the number of patients Dr Gilhotra must have treated in her 40 year career. However, Dr Gilhotra engaged in repeated instances where her clinical judgment was deficient in relation to six patients over a total period of two years. 3. Dr Gilhotra saw around 20 to 25 patients a day, an average of three an hour. There were no significant time pressures. 4. While we accept that Patient A went to elaborate lengths to deceive Dr Gilhotra with fake phone calls and documents, there were obvious signs that they were not legitimate. We consider the unethical behaviour and the prescribing to Patient A, to be very serious because of the length of time and the quantities involved. In all the circumstances, prescribing fentanyl was not just naïve, it was reckless. 5. In a few instances, Dr Gilhotra lacked the knowledge expected of a GP of her experience. She did not appreciate that a 'drug dependent person' was not just the stereotypical 'drug addict' – a person looking dishevelled and behaving irrationally. Ultimately, Dr Gilhotra accepted that a person who has a job and comes from a 'good family' can be drug dependent (Patient D). Although she appeared to have a stereo-typical view of what a drug dependent person looks like, she knew that she needed an authority to prescribe to such patients. Even if she was unsure about how to go about obtaining an authority in a group practice, one inquiry with a colleague was not adequate. 6. Patients C, D and E were all accompanied by their mothers, although only one was under 18 years of age. According to Dr Gilhotra, that fact obscured what may otherwise have been a red flag for drug dependence. We can understand that the presence of the patients' mothers may have given Dr Gilhotra some comfort, but that fact does not lessen the seriousness of her conduct. 7. Patient C asked for help to reduce his reliance on alprazolam and, at the third consultation, Dr Gilhotra prepared a mental health plan. On the fourth consultation she referred him to a psychiatrist. By the time of the fifth consultation Dr Gilhotra had ceased prescribing alprazolam. 8. Dr Gilhotra commenced Patient D on oxycodone for the first time. Later she referred him for X-rays and CT scans. Dr Gilhotra prescribed Patient E, a complex patient, 500 tablets of dexamphetamine which was 250 days' supply. This was not a continuation of a script written by someone else. For Patient F, Dr Gilhotra referred him for an X-ray and suggested physiotherapy. Dr Gilhotra did not prescribe alprazolam at the third consultation and referred Patient F to an orthopaedic surgeon. We acknowledge that Dr Gilhotra did make some efforts to treat and refer these patients. 9. Dr Gilhotra's lack of judgment was not because of ignorance or mistakes. For the most part, she had the knowledge and skill to treat these patients in a professional manner. For example, Dr Gilhotra knew the dangers of prescribing S4 and S8 medications, she knew she had to properly assess patients; she knew she needed to do a physical examination if they were complaining of pain; she knew that she should check in the notes (not just the list of 'current medications') to see when the patient was last prescribed the medication and the quantity prescribed; she knew the red flags of drug dependent behaviour and that it was not acceptable simply to 'refill' a patient's previous scripts. Despite this knowledge, Dr Gilhotra consistently failed to do these things. 10. Dr Gilhotra recklessly prescribed drugs for a purpose and in a quantity that was significantly below the relevant standard. For example, she prescribed fentanyl patches to Patient A and Patient B without specialist supervision. The quantity of fentanyl prescribed to Patient A is alarming. Over a 555 day period Dr Gilhotra prescribed 290 fentanyl 100mcg/hr patches to Patient A. Over the same period, she prescribed 756 OxyContin 80mg tablets. That is an OEMDD of 540mg (300 from fentanyl and 240 from oxycodone). That level of prescribing is well above the accepted threshold. 11. For the reasons we have given, we do not accept Dr Gilhotra's evidence that she misunderstood Ms Dolan's advice to stop prescribing Patient A with fentanyl. Dr Gilhotra admits that her conduct amounts to professional misconduct, even if it is not unethical. 12. This complaint is proven. Dr Gilhotra is guilty of professional misconduct. What orders should the Tribunal make? Legal principles 1. The Tribunal should focus on the protection of the public and the maintenance of proper professional standards, not on punishment: Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at [20]-[21]. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing) held that: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. In summary, we must take into account any need to protect the public against further misconduct by Dr Gilhotra, as well as the need to protect the public through general deterrence; by reinforcing high professional standards and by maintaining public confidence in the profession. The degree to which Dr Gilhotra remains a risk to the health and safety of future patients and the need for general deterrence, depends on several matters including the seriousness of the conduct, her remorse and insight, any improvements to her knowledge and practise from experience or training and her overall character. Seriousness of the conduct 1. We have discussed the serious of the conduct above when deciding that it constitutes professional misconduct. Remorse and insight 1. Dr Gilhotra expressed remorse about her conduct. In particular in relation to the amount of fentanyl and oxycodone she prescribed to Patient A, she says she feels "so embarrassed and shameful". In oral evidence Dr Gilhotra said that she had made mistakes, that she is ashamed and apologetic and will not make the same mistakes again. She feels "sad and terrible" that her prescribing led to undesirable outcomes for her patients. She acknowledged that it could have put them in danger of overdose or diversion. 2. We accept that Dr Gilhotra genuinely feels remorseful, but we are not persuaded that she fully appreciates the significance of her poor prescribing. She repeatedly said that she had made "mistakes" and, on one occasion, that "we all make mistakes". These are not the kind of mistakes that every practitioner makes. They are far more serious than that. 3. Dr Gilhotra had difficulty identifying why she behaved as she did. The closest she came to some kind of explanation or insight was in relation to Patient D. She said that she was trying to help him control the pain and continue working, that there was pressure from his mother and that she felt obliged to prescribe him with oxycodone. 4. We had reservations about some of Dr Gilhotra's evidence. On occasions she appeared to give evidence that something had or had not happened, but on closer questioning she was less certain. On other occasions she changed her evidence or obfuscated. Training and other steps to improve 1. In the last two years, Dr Gilhotra said she has made significant changes to her practice. She lists the changes as including: maintaining a low threshold for drug seeking behaviour; consulting more frequently with her colleagues in the practice, alerting other colleagues about such patients in case they have been doctor shopping; being wary of phone calls and emails from other doctors regarding the prescription of medications; making further enquiries to confirm the authenticity of such messages and referring patients to pain clinics, drug addiction services and psychologists more readily. 2. Dr Gilhotra has read articles on opioid prescriptions in pain management by the RACGP, NPS Medicine wise, and is working with AVANT to further improve her knowledge and education in this area. She has completed an intensive course called Better Pain Management which is run by the Faculty of Pain Management, ANZCA, and includes 12 modules. Dr Gilhotra said she has refreshed her knowledge of the NSW Health documents on Poisons and Therapeutic Goods Legislation and updated her knowledge on prescribing Schedule 8 opioids or benzodiazepine drugs, especially in relation to obtaining authority for drug dependent patients. 3. Dr Gilhotra said she has studied further literature on drug seeking and doctor shopping behaviours and is aware of the Drug and Alcohol Specialist Advisory Service based at St Vincent's Hospital. She has participated in RACGP's CPD program. Dr Gilhotra is working closely with the Royal Prince Alfred and Concord Hospitals pain clinics. She is more aware of the importance of comprehensive record keeping and makes extra efforts to document the details of history and treatment plans. She has undertaken online courses on medical records. Future conduct 1. Dr Gilhotra said she realised how important it is to ensure both patient and community safety by taking care in prescribing S4 and S8 drugs. She gave the following evidence in relation to each of the patients. 2. For Patient A she says that, on reflection, she accepts that she did not take appropriate steps to verify the identity of the doctors who called her. She has become more wary of phone calls and emails from other doctors and checks their authenticity. She will also check the written letter or fax and then call the doctor to confirm. She will check their provider number and registration with Ahpra. Finally, she will consult with her colleagues when in doubt and check on SafeScript NSW as well. 3. Dr Gilhotra said she has learnt to document a more comprehensive history and physical examination, check the referrals more thoroughly and have a low threshold for repeated requests for S8 drugs. She will take more of a whole-body approach than just the presenting symptoms, including taking a detailed history, conducting a physical examination and checking past medications and referrals. 4. If the situation with Patient B presented itself again, she would speak to the doctor who refused to write the prescription in the previous days to obtain more information. She would document a more detailed history and examination and check SafeScript NSW. If the patient was "flagged" she would not prescribe any opioid analgesia and would offer referral to a pain clinic or drug rehabilitation organisation. If presented with old documents in the future, she would ring the patient's current GP. 5. Dr Gilhotra would document more details of her consultation and conversations with other medical personnel involved with Patient C's care. She would discuss with the patient the harmful effects of drug dependence and how it affects a person's physical and mental health. She would also refer the patient to a specialist as soon as possible and check SafeScript NSW before prescribing alprazolam. 6. For Patient D, Dr Gilhotra said she should have: documented the history and physical examination in more detail; tried a whole of patient approach to convince the patient to take non opioid medication; referred him to appropriate specialists at an early stage; and been more aware of the red flags for drug addiction and dependence. In future, Dr Gilhotra said she will not prescribe opioid medication for prolonged periods following an episode of acute pain due to trauma. 7. On reflection, if she were to encounter a patient like Patient F, who was already taking a drug of dependence, she would more thoroughly assess his anxiety symptoms and their impact on his ability to function and explore better ways of managing his anxiety including non-drug strategies. She now uses the services of allied health and specialist services in the management of such patients. She would also document in more detail the history and physical examination. Character 1. Ms Agatha La Manna, Practice Manager at the medical centre where Dr Gilhotra works, provided a reference. She has worked with Dr Gilhotra for the past five years. According to Ms La Manna, Dr Gilhotra has positive relationships with patients and handles delicate situations with empathy and understanding. Her calm and reassuring demeanour is particularly helpful for patients who are distressed. Once the complaint was made, Dr Gilhotra showed genuine remorse and was upset with herself about the incidents. 2. Dr George Peponis is a colleague of Dr Gilhotra at the practice. He has worked with her for four years. In his opinion she is caring, capable and empathetic and is respected and well-liked by patients and colleagues. According to Dr Peponis, Dr Gilhotra has expressed genuine remorse for her error in judgment. Dr Peponis strongly believes that these circumstances will not be repeated if Dr Gilhotra is permitted to continue practising. Conclusion 1. The Commission seeks orders that Dr Gilhotra's registration be suspended for 12 months and that, on her return to practice, she be subject to several conditions. Those conditions include that she not prescribe S8 drugs, work only in a group practice and be subject to Category C supervision. 2. Dr Gilhotra submits that her registration should not be suspended but does not strenuously oppose a reprimand or the other practice conditions sought by the Commission. According to Dr Gilhotra, neither deterrence nor protection require suspension. The proposed conditions achieve the goal of ensuring public safety and a reprimand acts as a deterrent. 3. Although we were referred to some so called "comparable cases" there is little point analysing them because each case is unique. 4. Dr Gilhotra understands that what she has done is serious enough to amount to professional misconduct. She is a very experience general practitioner and should have had the knowledge and skills to recognise and respond to drug seeking behaviour. She listed her clinical interests as including musculo-skeletal health and mental health, but she did not display the level of knowledge, skill, judgment or care expected of her. 5. She has reflected on her conduct and identified the ways that she would change her behaviour in future. However, given the seriousness of that conduct, and all the other matters we have discussed, protecting the health and safety of the public and denouncing that conduct requires not just a reprimand but suspension from practice for a period of 12 months. On returning to practice, she should be subject to Category C supervision and a prohibition on prescribing Schedule 8 drugs. We could find only two instances of Dr Gilhotra prescribing the S4D medication, diazepam, to Patient C. Given the limited prescribing of Schedule 4 and Schedule 4D drugs we do not consider a blanket ban on prescribing those drugs to be necessary. Costs 1. The Tribunal has power to order that one party should pay another party's costs: National Law, Sch 5D, cl 13. The general rule is that the unsuccessful party should be ordered to pay the successful party's costs. In legal terms, that principle is expressed as costs following the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Meagher JA, Emmett JA and Beech-Jones J at [42]. The presumption that a successful party is entitled to costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 at [40]. 2. The Commission was largely successful in these proceedings and there was no disentitling conduct. Dr Gilhotra is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Orders 1. Under section 149C(1)(b) of the Health Practitioner Regulation National Law, the Tribunal suspends the respondent's registration for a period of 12 months from the date of this decision. 2. Under section 149A(1)(b) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the respondent's registration at the expiry of the period of suspension: 2.1 To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2.2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered Medical practitioners (excluding the subject practitioner) and: 1. The patients and patient records are shared between the practitioners. 2. There is always one other registered medical practitioner on site. 2.3. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2.4. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy — Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each supervision meeting the practitioner is to review and discuss their practice with their approved supervisor with particular focus on: 1. Appropriate prescribing practices, including pain management, identifying drug-seeking behaviours and non-pharmacological methods 2. Patient management, assessment and investigations 3. Safety netting, advice and referrals 1. At each supervision meeting, at least 5 patient records are to be reviewed and discussed with the Supervisor. Monthly Record reviews are to alternate between: 1. 5 patient records randomly selected by the Council-approved supervisor 2. 5 patient records of complex and challenging patient presentations selected by the practitioner 3. The details, feedback and discussion regarding the records are to be included in supervision reports. 1. To authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. 2. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition or any relevant decision or report 3. Not to practise until a supervisor has been approved by the Medical Council of NSW. 2.5. To submit to an audit by a random selection of their medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit is to be held within 6 months from recommencement of practice and subsequently as required by the Council. 2. The auditor(s) is to assess the practitioner's compliance with Good medical record keeping standards, legislative requirements, and compliance with conditions. 3. The auditor(s) should pay particular attention to: 1. Appropriate prescribing practices particularly S4D medications 1. To authorise the auditor(s) to provide the Council with a report on their findings. 2.6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 1. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. 2. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply While the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 3. The practitioner is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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 25 August 2023 - . 25 August 2023 - Coversheet: cases cited and legislation cited amended. 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: 25 August 2023