Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Taylor [2023] NSWCATOD 189 Hearing dates: 23 November 2023 Date of orders: 20 December 2023 Decision date: 20 December 2023 Jurisdiction: Occupational Division Before: The Hon Ainslie-Wallace ADCJ, Principal Member Dr S Patel, Senior Member Dr P Young, Senior Member J Barker, General Member Decision: 1. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), an application for review of Order (1) under Division 8 of the Health Practitioner Regulation National Law (NSW) may not be made until the expiry of a period of two years from the date of this decision. 3. Pursuant to Clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs as agreed or assessed. Catchwords: OCCUPATIONS – Medical Practitioners – Misconduct and discipline – Unsatisfactory Professional Conduct – Professional misconduct - improper and unethical conduct – impairment – Not competent Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 Cases Cited: Kirby v Dental Council of NSW [2020] NSWCA 91 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 R v Byrnes [1995] HCA 1 Health Care Complaints Commission v Johnson [2023] NSWCATOD 165 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Chen v Health Care Complaints Commission [2017] NSWCA 186 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Health Care Complaints Commission v Do [2014] NSWCA 307 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Health Care Complaints Commission v Philipia [2013] NSWCA 342 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Kim Therese Taylor (Respondent) Representation: Counsel: I Chatterjee (Applicant) I Fraser (Respondent) Solicitors: Health Complaints Commission (Applicant) File Number(s): 2021/00193552 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the patients referred to as Patient A, Patient B, Patient C, Patient D and Patient E in the Complaint forming part of the Application in this matter is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission (the "Commission") by an amended complaint filed on 16 November 2023, complains pursuant to the Health Practitioner Regulation National Law (NSW) (the "National Law") that Dr Kim Therese Taylor (the "practitioner") is guilty of unsatisfactory professional conduct and/or professional misconduct; has contravened a condition to which her registration is subject, engaged in improper and unethical conduct, has an impairment and is not competent to practise as a medical practitioner. Each complaint is supported by particulars of the alleged conduct. 2. The practitioner admits each complaint and the supporting particulars, accepts that her conduct justifies a finding of professional misconduct and admits that she is currently impaired and is not competent in that she lacks the mental capacity to practise as a medical practitioner. 3. The practitioner did not attend the hearing nor did her lawyers participate in the hearing. 4. Notwithstanding the concessions on the part of the practitioner which, in our opinion is well made, it is important that we set out the background to the present complaint and consider the particulars of the individual complaints because we must be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the practitioner (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and Gautam v Health Care Complaints Commission [2021] NSWCA 85) Background 1. The practitioner is a general practitioner and was first registered in NSW in March 1981. She was awarded a Diploma in Paediatrics in 1992 and became a Fellow of the RACGP in 2008. The practitioner has a long-standing mental health illness and has been diagnosed as having a schizoaffective disorder which has been managed through psychiatric care and medication. 2. Conditions on the practitioner's registration were first imposed in 1992 and have, since then been modified or expanded from time to time. The extensive practice and health conditions have permitted the practitioner to continue to practise medicine. The practitioner has been suspended from practice for periods when she was unwell, and she has had a condition on her registration that she not practise when there is a potentially heightened risk of her health deteriorating leading to a reduced capacity to practise safely. Over the years while the practitioner was practising, a number of hearings pursuant to s150 of the National Law have been convened to consider whether steps should be taken to ensure that the practitioner can continue to practise safely. 3. The practitioner was suspended from practice from 29 July 2020 until 8 October 2020 and from 4 March 2022 to the present. 4. In summary, the practice and health conditions on her registration which are relevant to the present complaints were: 5. Practice Conditions: 1. To practise under Category B supervision and consult with her supervisor on a daily basis; 2. To practise only in a supervised position approved by the Council in a group practice; 3. To maintain a list of all patients seen in each calendar month specifying the date and time of the consultation and the name of the patient. The list to be submitted to the Council for review at the end of each month; 4. To prepare and submit to the Council a 12 month Continuing Professional Development plan with evidence of compliance to be submitted to the Council each month; 5. To work no more than 5 consecutive days in a week; 6. To treat no more than 28 patients in any one day. 1. Health Conditions: 1. Not to prescribe for self-medication; 2. To attend for treatment by a general practitioner; 3. To prepare a 12 month treatment plan in conjunction with her treating psychiatrist including provisions dates of consultations and to provide that plan (to be signed by her treating psychiatrist) and a revised plan to be provided to the Council every 12 months. 1. All of these conditions were in force at the time the conduct to which the complaints refer occurred. 2. The practitioner worked at a Medical Centre in Blacktown from 2016 until her registration was suspended on 29 July 2020. Another practitioner there acted as her supervisor. Following the lifting of her suspension in October 2020, she worked at a medical practice in Penrith. 3. On 29 July 2020 a panel of delegates of the Medical Council convened a s150 hearing following receipt of complaints that the practitioner had breached a health condition by self-administering a flu vaccine, had not maintained an effective relationship with a general practitioner and had, mistakenly, administered an adult dose of hepatitis A vaccine to a child. 4. In the reasons of the panel, they indicated concern that there were times when the practitioner was working alone at the Blacktown practice while her supervisor was not present. This was the situation on the day when she gave the incorrect dose of hepatitis vaccine to the child. 5. Of significant concern to the panel was that notwithstanding this issue having been raised before, at the request of her supervising general practitioner, the practitioner was writing care plans for patients with whom she had not consulted and the billing for those plans was in her name. The care plans were thus based on the observations in the notes of other practitioners. 6. The practitioner told the panel that although she understood that she had undertaken not to do this, she felt unable to refuse to comply with the request from her supervisor to complete the care plans. 7. The panel concluded: Given Dr Taylor is currently impaired within the meaning of the National Law, and given the nature of her impairment raises concerns for the health and safety of the public, the lack of reassurance that the imposed conditions are in place with effectiveness poses an unacceptable and significant immediate risk to the public. We are concerned that despite repeated reminders to Dr Taylor of the necessity for compliance, new issues continue to emerge which demonstrate lack of comprehensive compliance. We consider that there are currently heightened risks for the health and safety of the public, given incomplete implementation of some of the current conditions related to supervision, and problems with compliance with health conditions of self-prescribing and attendance at a general practitioner. In the absence of comprehensive implementation of these conditions, there is an unacceptable risk to the public that Dr Taylor could face further situations of feeling rushed or panicked, and so self-prescribe, or make a mistake in the practice setting. Additionally, Dr Taylor's inability to refuse to perform duties which she knows are inappropriate and/or unethical despite repeated reminders and undertakings not to presents a significant risk to patient welfare. Given incomplete implementation and compliance with the conditions, we consider that further action is warranted at this time given the current lack of reassurance that the risks related to Dr Taylor's impairment as they potentially affect her practice of medicine are currently sufficiently managed. 1. The panel suspended the practitioner's registration. 2. The practitioner sought a review of that determination. A s150A hearing was convened and on 30 October 2020 the suspension of the practitioner's registration was lifted. It is clear from the reasons of that panel that the delegates were satisfied the practitioner had addressed the matters of concern which led to the suspension of her registration by, for example providing details of her general practitioner and noting the occasions on which she had consulted her. The delegates concluded that there had been changed circumstances sufficient to justify the setting aside of the suspension on the practitioner's registration. 3. The complaint as to the administration of the adult dose of vaccine, the apparent breaches of conditions on her registration were referred to the Commission for investigation and are part of the complaints on which the Commission now proceeds. 4. The practitioner's registration was again suspended on 4 March 2022 and remains in place. 5. On 4 March 2022, a s150 hearing was convened to consider matters of concern arising from a Council Review Interview report of 15 December 2021 relation to the practitioner prescribing of drugs to which Schedule 4D and Schedule 8 of the Poisons and Therapeutic Goods Act 1966 applied. The hearing also considered the practitioner's continued breaches of the conditions on her registration being the requirement for Category B supervision and for daily consultations with her supervisor, engagement with a treating general practitioner and psychiatrist and having quarterly reviews with a health assessor. 6. The reasons for the decision of the panel refer to the practitioner failing to provide supervision reports for June to August 2021 and in not providing a Continuing Professional Development plan until very late. The panel noted that the practitioner had, again, changed her general practitioner and it was observed that over the past years she had frequently changed general practitioners raising concerns about the level of her engagement with a general practitioner in compliance with the health condition. She also changed her treating psychiatrist, albeit not as frequently as she had her general practitioner, again raising concerns in the panel that the practitioner was not engaging with health professionals. The panel said that her constant change of general practitioner undermined her health. 7. The delegates concluded that the practitioner had breached four conditions on her registration relating to providing a log of patients seen, attending a general practitioner, preparing a 12 month treatment plan in conjunction with her psychiatrist and preparing a 12 month plan for Continuing Professional Development. 8. Turning to the prescribing of Schedule 4D and Schedule 8 drugs, the panel concluded that the practitioner had provided these drugs to people who had been identified as "doctor shopping", that is seeking out doctors who would supply drugs of addiction. The panel concluded that the practitioner had been prescribing drugs in a manner that put the patients and the public at risk of harm. 9. The practitioner's professional performance was regarded as being below acceptable standard. 10. Finally, the panel concluded that the practitioner was impaired within the definition of that term in section 5 of the National Law. 11. After concluding that no conditions imposed on her registration would minimise the risk to the health and safety of the public, the panel suspended the practitioner's registration. 12. We turn now to the Complaints alleged by the Commission. Complaint One 1. The Commission alleges that the practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B(1) of the Health Practitioner Regulation National Law (NSW) (the "National Law") by 1. engaging in conduct that demonstrates the 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 and experience; and/or 2. has contravened a condition to which her registration is subject; and/or 3. has engaged in improper or unethical conduct relation to the practice or purported practice of medicine. 1. The particulars relating to the breach of conditions are: 1. On 21 March 2020, the practitioner self-administered a flu vaccine in breach of Health Condition 1 2. On 5 June 2020, the practitioner: 1. incorrectly administered an adult dose of a Hepatitis A vaccine ("the Hepatitis A vaccine") to Patient A, a 6-year-old child; 2. administered the Hepatitis A vaccine when no other practitioners, including the practitioner's supervisor, were present in breach of Practice Condition 1; 3. did not consult with her supervisor, as she was required to in breach of Practice Condition 1; 4. had worked on other occasions at the Blacktown Medical Centre when no other practitioners, including the practitioner's supervisor, were present at the Medical Centre, in breach of Practice Condition 2. 1. As of 29 July 2020, the practitioner had not engaged with a General Practitioner and had not consulted with one for between 12 and 24 months, in breach of Health Condition 2. 2. Between May 2008 and February 2022, the practitioner changed her regular treating General Practitioner frequently without good reason, in breach of Health Condition 2. 3. The practitioner failed to submit to the Council a list of all patients seen by her in June, July, August, and September 2021, in breach of Practice Condition 3. 4. The practitioner failed to submit to the Council her 12-month CPD plan for 2022. 5. The practitioner failed to submit to the Council her 12-month treatment plan for 2022 with her treating psychiatrist by the due date of 31 December 2021, in breach of Health Condition 3. 6. The practitioner worked more than 5 consecutive days in a week, while working at High Street Family Doctors, on the following dates, in breach of Practice Condition 5: 1. 20-25 January 2021 2. 2-7 September 2021 3. 10-15 December 2021 1. The practitioner treated more than 28 patients in any one day, while working at High Street Family Doctors, on the following dates, in breach of Practice Condition 6: 1. 29 June 2021 - 29 patients 2. 26 July 2021 - 29 patients 3. 14 November 2021 – 29 patients 4. 28 January 2022 – 47 patients 5. 18 February 2022 – 40 patients 6. 20 February 2022 – 36 patients Breach of Suspension 1. On 11 August 2020, during the period of her suspension, the practitioner prescribed Atorvastatin 30mg to Patient B in breach of her suspension from practice. 2. On 20 September 2020, during the period of her suspension, the practitioner prescribed Irbesartan 300mg + Hydrochlorothiazide 12.5mg and Paracetamol 665mg modified release tablets to Patient C in breach of her suspension from practice. 1. Particulars 1 and 2 were discussed with the practitioner in a s150 hearing convened in August 2020. 2. In relation to self-administering a flu vaccine, the practitioner said she was worried about the flu and the Corona virus and said her respiratory physician told her that if she caught Corona virus she might die. She said that there was one flu vaccine left in the fridge at work but she felt she could not ask one of the other doctors to administer it to her because the treatment room was unacceptably messy and she did not know which doctor had left it in that state and she would not ask a doctor who had left the treatment room so untidy to administer the vaccine to her. She said she panicked and administered it to herself. 3. The reasons of the s150 hearing note that the requirement that the practitioner not self-administer medication had been raised with her before. 4. The practitioner said that on the day she administered the incorrect dose of Hepatitis A vaccine to a child, she was working alone in the practice, her supervisor was not there and she thought the mother of the child seemed to be in a hurry. She did not realise her mistake until she was writing up her notes after the consultation. She did not ring her supervisor that day and inform him of her mistake. 5. The s150 panel observed that this error occurred when the practitioner was not supervised and working alone and said that these circumstances increase risk of errors. They emphasised the need for the practitioner to have high level supervision. 6. The practitioner said that there were occasions when she worked alone at the practice and said that she felt she could not refuse the request of her supervisor to work alone. The s 150 panel said the practitioner appeared to be unable to refuse requests or to perform duties which she knows are inappropriate or unethical and notwithstanding repeated reminders to her, continues to work in breach of conditions and they concluded this presents a significant risk to the health and safety to patients. 7. Particulars 3 to 9 all concern breaches of the practitioner's health conditions. These conditions had been imposed in order to permit the practitioner to continue to practise medicine safely. 8. Sufficient concerns were raised about the practitioner's failure to comply with practice and health conditions that on 4 March 2022 a s150 panel was convened to consider whether the practitioner continuing to practise posed a risk to the health or safety of the public. 9. In the reasons for decision the panel observed that the practitioner changed her general practitioner frequently and noted that the practitioner had been told on many occasions the importance of maintaining engagement with one practitioner who was familiar with her health and prescribed medication, and found that the constant changes undermined her health. Although she had not so frequently changed her treating psychiatrist, similar concerns were raised. 10. In conclusion the panel said: We note however, that [the practitioner's] capacity to practise her profession is dependent on fulfilling all of her health conditions (and other conditions) namely to engage with and remain under the continuing care of her treating psychiatrist with ongoing treatment plans and with overview from the Council Appointed Psychiatrist. While [the practitioner] maintained regular attendance with her psychiatrist and attended the CAP Dr Walker who assessed her mental health as stable and assessed her as fit to practise with current conditions, she failed to abide by all of her health conditions. She failed to provide the 12 month treatment plan in conjunction with her treating psychiatrist including provisional consultation dates. This breach of her health conditions raises serious concerns about [the practitioner's] ability to properly engage with the safeguards required to ensure that her mental health condition remains stable with ensuing concerns about her fitness to practise and the risk to the public's health and safety. 1. Particulars 10 and 11 relate to prescriptions written by the practitioner for two patients (B and C) at a time while she was suspended from practice, namely 11 August and 20 September 2020. 2. In the s150 hearing convened in August 2022, the practitioner maintained that she had not written those prescriptions while she was suspended and said that there must have been an administrative error. The practitioner denied she would write prescriptions while suspended. The Commission relied on the data provided by Medicare for that period showing that the prescriptions were written by her. 3. The breaches of the conditions have been admitted and we are comfortably satisfied that the evidence on which the Commission relies establishes each particular. In finding the breaches established and what flows from that, it is important to set out the underlying principles and rationale for the imposition of conditions on a practitioner's right to practise. Imposition of conditions pursuant to s 150 of the National Law 1. Section 150 of the National Law provides that: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest – … (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the council considers appropriate; … 1. In Kirby v Dental Council of NSW [2020] NSWCA 91, the Court of Appeal considered the effect of orders made pursuant to s 150 for suspension or imposition of condition on the registration of a practitioner. Brereton JA said (at [15]): "In the context of a provision headed 'Suspension or conditions of registration to protect public', and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied – regardless of how the matter comes to its attention – it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints." 1. In this context, unsatisfactory professional conduct is defined in s 139B(1)(c) of the National Law as: (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of – (i) a condition to which the practitioner's registration is subject; … 1. As was said in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 ("Amalakumar") at [24]: "We reject the suggestion in the practitioner's case that we have any discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unprofessional conduct. Section 139B(1)(b) is unlike s 139(1)(a) or s 139(1)(l), for example, in that it requires no evaluation, assessment or characterisation of the conduct alleged in order to be established." 1. While the court there spoke of s 139B(1)(b) of the National Law, in our view there is no difference in approach from there adopted to s 139B(1)(c) which provides that a breach of a condition, having been found as a fact, constitutes unsatisfactory professional conduct. 2. The Court continued in Amalakumar and said, at [27]: "In the present case, the contravention by the practitioner of a provision of the National Law has been established as a matter of fact. The section designates that contravention as unsatisfactory professional conduct. The Tribunal has no discretion, notwithstanding the fact that we accept that the practitioner contravened his reporting obligations under the National Law as a result of being given the wrong legal advice." 1. Taking into account the admitted conduct, admitted breaches of the conditions particularised and the practitioner's evidence as to the context in which these breaches were occasioned, we are satisfied that Complaint 1 is established and the practitioner is guilty of unprofessional conduct. Improper or unethical conduct 1. It was further alleged that the conduct referred to in the particulars of Complaint 1, amounted to improper or unethical conduct. 2. The terms improper or unethical are undefined and courts have considered the ordinary meanings of those words. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 ("Sare"), the Court adopted the dictionary meaning of improper to be "not in accordance with propriety of behaviour…". 3. Other authorities have considered the meaning of improper to include "not in accordance with truth, fact reason or rule, abnormal, irregular, incorrect, inaccurate, erroneous, wrong". 4. In R v Byrnes [1995] HCA 1 at [25], the definition of improper was found to include "… a breach of the standards of conduct that would be expected of a person in the position of the alleged offender…" 5. In Sare, the Court accepted (at [31]) "unethical" as bearing the meaning "contrary to moral precept, immoral …". In Health Care Complaints Commission v Johnson [2023] NSWCATOD 165, the Tribunal in the context of that matter, adopted a broad definition from the Macquarie dictionary to include contravention of a professional code. 6. The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139(B)(1) that is conduct relating to the practice of the practitioner's profession. 7. The Commission did not directly address this issue in the submissions on Complaint 1 and we are left to assume the conduct to which allegation of improper or unethical conduct refers is to all of the conduct particularised in Complaint 1. It is indisputable that the practitioner's particularised conduct could comfortably be described as improper. As to whether her conduct as particularised was overall unethical, even though we observe that the practitioner admitted this (and every particular), we are not satisfied that it meets the definition of "morally wrong". However, to prescribe for Patient B and C while the practitioner was suspended was certainly wrong in the relevant sense and amounts to unethical conduct. We note too that this particular of the Complaint was admitted by the practitioner. 8. We thus find the complaint made out both as to unsatisfactory professional conduct, breach of conditions and the conduct being improper and, in relation to Particulars 10 and 11, was unethical. Complaint Two 1. By this complaint, the Commission alleges that the practitioner is guilty of unsatisfactory professional conduct in that she has: i. engaged in conduct that demonstrates the judgment possessed or care exercised by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The particulars of this complaint concern the practitioner's practise of writing Health Care plans for patients whom she had not seen in circumstances where she had been told previously that the conduct was not in the best interest of the patient nor was it appropriate professional practice. Further that she continued to issue bills in respect of these patients despite having been told that it did not satisfy the requirements of the Medicare Benefits Schedule. 2. In the reasons for decision of a s150 panel convened in July 2020, the practitioner told the panel that she was still writing health care plans for patients she had not seen at the request of her supervising general practitioner. She said that the plans are billed in her name and she received 50% of the Medicare rebate in respect of writing the plans. She said that the patients had consented to a health plan being prepared. 3. The reasons note that this issue had been raised in a s150 hearing in September 2019 and in a report dated 15 November 2019 in which it was observed that the practitioner's supervising general practitioner had received a copy of the s150 decisions of May 2019 and August 2018 which "… highlighted the Council's negative view of [the practitioner's] involvement in writing Health care plans for patients that she had not seen in consultation yet [the practitioner] reports that she continues to do so at the request of her supervisor." 4. The particular alleges that despite having received advice on a number of occasions and from a number of sources including in the course of a s150 hearing in September 2019, and despite giving an undertaking that she would not write the Health Care Plans, she continued to do so. 5. The panel noted that the practitioner said she felt unable to refuse the requests from her supervisor and practitioner manager to continue with this inappropriate practice given her precarious situation and said:" … It accords with other instances such as [her supervisor] leaving her alone at practice, where she has been unable to voice concerns over unethical or inappropriate requests or situations that run contrary to her imposed conditions." 6. We find this Complaint established and are satisfied that it amounts to unsatisfactory professional conduct and that the conduct was improper and unethical. Complaint Three 1. This complaint relates to the practitioner's prescribing of drugs of addiction to two patients, Patient D and Patient E and alleges that she is guilty of unsatisfactory professional conduct and/or engaged in improper or unethical conduct relating to the practice of medicine. 2. These complaints relate to a period after the practitioner's suspension had been lifted in October 2020 and she was working at a practice in Penrith. In the period to which this complaint concerning Patient D refers, that is 29 November 2020 to 18 December 2020, the practitioner saw her on six occasions and prescribed a total of 80 tablets of Endone, a Schedule 8 drug of addiction. So far as Patient E is concerned, this complaint relates to the period between 11 April 2021 and 27 February 2022 in which the practitioner saw the patient on 63 occasions and prescribed 3,731 tablets of Temazepam, a Schedule 4 drug of addiction. Of those occasions, 46 prescriptions were written at a time when the practitioner was suspended from practice. Patient D 1. In relation to Patient D it is alleged that the practitioner 1. At the first consultation on 29 November 2020 prescribed Endone without conducting a comprehensive assessment of the patient 2. In circumstances where Patient D had seen two other doctors at High Street Family Doctors, and those doctors had noted that Patient D presented with drug-seeking behaviour, the practitioner inappropriately prescribed Endone to Patient D on five occasions namely, a total of 80 tablets between 29 November and 18 December 2020. 3. In circumstances where Patient D had seen two other doctors at High Street Family Doctors, and those doctors had noted that Patient D presented with drug-seeking behaviour on 11 and 12 December 2020, the practitioner failed to seek authority from the Ministry of Health pursuant to sections 28 (3) and 29 of the Poisons and Therapeutic Goods Act 1996 to prescribe a Schedule 8 medication to Patient D after 12 December 2020. 4. The practitioner failed to make a note of Patient D's drug-seeking behaviour at an appointment on 7 December 2020 5. The practitioner failed to respond to Patient D's drug-seeking behaviour at appointments on: 1. 7 December 2020; 2. 13 December 2020; 3. 15 December 2020. 1. The practitioner failed to refer Patient D to a Drug and Alcohol specialist at appointments on: 1. 7 December 2020; 2. 13 December 2020; 3. 15 December 2020; 4. 18 December 2020. 1. Patient D consulted the practitioner on six occasions from 29 November 2020 until 18 December 2020. This patient first presented to the practice on 7 November 2020 requesting Endone. She returned on 12 November and again sought a prescription for which was prescribed. 2. At the consultation with the practitioner on 29 November 2020, Patient D told the practitioner that she had wound pain and the practitioner ordered x-rays and a urine test. She prescribed 20 tablets of Endone. Patient D returned to see the practitioner on 4 December 2020 claiming to have lost her prescription for Endone and seeking a new prescription which the practitioner issued. She returned on 7 December and at that time admitted that she was taking two tablets every 4 hours. The practitioner's notes indicate a plan to wean Patient D off Endone, however at this appointment the practitioner prescribed 20 tablets of Endone. 3. On 11 and 12 December 2020, Patient D's notes reveal that she attended the practice seeking Endone. The doctors who saw her declined to provide the prescriptions. On 13 December she attended on the practitioner who noted that she told Patient D that she could not have any more Endone in the future but gave her 10 more tablets. On 15 December Patient D returned and the practitioner refused to give her Endone. 4. In all, in a period of 17 days, the practitioner provided Patient D with 80 Endone tablets. 5. During the s150 hearing on 4 March 2022 when her prescribing for Patient D was raised with her and the practitioner was asked why she thought her colleagues refused to prescribe for the patient, the practitioner said, "I daresay (sic) thought she was drug seeking". The practitioner told the panel that on reflection, Patient D "possibly" was drug seeking. Peer report 1. Dr Emery Kertesz, a general practitioner provided an opinion about the nature of the practitioner's prescribing in relation to patients D and E and whether the treatment and care offered each of them was of a standard reasonably expected of a practitioner of an equivalent level of training or experience as the practitioner, whether the practitioner's care and treatment fell below that expected standard and whether the departure from the standard of care fell significantly below that expected standard. Patient D 1. Dr Kertesz said that the prescription of Endone (Oxycodone) is indicated for short term management of severe pain where other treatment options have failed, are contraindicated, not tolerated or otherwise inappropriate. He said that opioids have an established role in the treatment of acute pain, cancer pain and palliative and end of life care. The risk of developing tolerance, physical dependence and risk of adverse effects including hazardous and harmful use increases with the length of time a patient takes the drug. Opioids should only be prescribed as a component of comprehensive multidisciplinary and multimodality pain management. 2. Risks associated with oxycodone use in combination with other central nervous system depressants including alcohol may result in sedation, respiratory depression coma and death. 3. He said it is necessary to determine whether the patient seeking opioids is drug dependent or drug abusive through the channels available to medical practitioners. 4. In relation to the practitioner's assessment and prescribing for Patient D, Dr Kertesz said that the practitioner's initial consultation with Patient D was insufficiently comprehensive and fell below the standard reasonably expected. He said that the practitioner's inattention to the notes her colleagues made previously about Patient D being drug seeking and continuing to prescribe despite knowing or suspecting that Patient D was drug abusing or dependent fell below the requisite standard. Equally he said that in light of the other doctors' notes about possible drug seeking behaviour she ought to have sought authority to prescribe a Schedule 8 drug and in failing to do so her conduct fell below the requisite standard as did her failure to refer to the patient to an addiction specialist or addiction service. 5. Dr Kertesz said that given the limited time period over which the practitioner saw this patient, some 20 days, there may not have been sufficient time to make referrals or seek authority however he said that the practitioner did not appear to appreciate legislative requirements or patient management issues with Schedule 8 drugs. 6. We accept the opinion of Dr Kertesz and are comfortably satisfied that the Complaint and the particulars of it in relation to Patient D are made out. The practitioner's treatment of Patient D fell below the standard reasonably expected of a practitioner of equivalent level of training and experience and we find that the practitioner is guilty of unsatisfactory professional conduct. Patient E 1. In relation to Patient E it is alleged that: 1. (7) At the first consultation with Patient E, at High Street Family Doctors on 11 April 2021, the practitioner failed to conduct a comprehensive assessment of Patient E before prescribing Temazepam. 2. (8) At a follow up consultation with Patient E, at High Street Family Doctors on 23 May 2021, the practitioner failed to conduct a comprehensive assessment of Patient E before prescribing Panadeine Forte. 3. (9) Between 11 April 2021 and 13 February 2022, on 18 occasions the practitioner inappropriately prescribed Temazepam to Patient E in excessive quantities and in unacceptable patterns, with multiple prescriptions being written on the same day. 4. (10) Between 23 May 2021 and 29 December 2021, the practitioner inappropriately prescribed Temazepam in excessive quantities concurrently with Panadeine Forte to Patient E. 5. (11) Between 25 July 2021 and 13 February 2022, the practitioner failed to respond to Patient E's drug-seeking behaviour. 6. (12) Between 11 April 2021 and 13 February 2022, the practitioner inappropriately prescribed Temazepam to Patient E in circumstances where: 1. Patient E's file contained multiple references to his doctor shopping activities on 28 April 2019, 10 July 2021, 7 September 2021, 28 September 2021, 12 October 2021, and 19 November 2021. 2. the practitioner's supervisor explained to her on 19 November 2021 that Patient E was a Medicare documented doctor shopper and that it was in the practitioner's and Patient E's interest to cease prescribing Temazepam and to refer him to a private addiction specialist. 3. her own documented management plan made in the patient file for Patient E on 21 November 2021 indicated that she could not continue prescribing Temazepam to him. 1. (13) Between 25 July 2021 and 26 November 2021, the practitioner failed to refer Patient E to a Drug and Alcohol specialist in a timely manner 2. (14) Following her suspension on 4 March 2022, between 13 March and 24 July 2022 the practitioner prescribed Temazepam in various quantities to Patient E on 46 occasions, in breach of her suspension from practice. 3. (15) Between 13 March and 26 June 2022, the practitioner inappropriately accepted approximately $3,285.00 from Patient E, deposited into her account via numerous transactions. 4. (16) At review proceedings convened by the Medical Council of NSW pursuant to section 150 of the National Law on 24 August 2022 the practitioner made written and oral representations regarding the prescriptions made out to Patient E during the period of her suspension that were misleading in that she said that: 1. the prescriptions provided to Patient E between 13 March and 24 July 2022 were written the week before her suspension all on different dates and that Patient E changed the dates on these prescriptions. 2. she did not write any new prescriptions while she was suspended. 1. Patient E first attended the practice where the practitioner was working on 21 April 2019 seeking Temazepam which was prescribed for him. Another practitioner saw him on his return on 28 April 2019, again seeking Temazepam which was prescribed but in relation to which that practitioner added to the notes: When the patient left I checked with doctor shopper hotline. He has been identified as a doctor shopper. In the last three months he has visited 13 describers (sic) and items such as Temazepam tablet 500 tablets…prescribed" 1. The patient presented to the practice on 17 November and 22 December 2019 and was prescribed Temazepam. 2. Patient E first saw the practitioner on 11 April 2021 when she prescribed Temazepam and Panadeine Forte. Thereafter the patient almost always saw the practitioner. However, on 10 July 2021 he saw a colleague of the practitioner who refused to prescribe for him and who included in the notes that the patient was a known doctor shopper. 3. The very next day the patient saw the practitioner who prescribed both Temazepam and Panadeine Forte. 4. In August 2021, the practitioner became aware that the practice principal had alerted the staff to the fact the Patient E was a drug addict and the practitioner said that this had upset the patient and, to avoid him coming into the practice, conducted her consultations with him in his car and wrote prescriptions there and billed them as telehealth consultations. 5. On 6 September 2021, the practitioner received a letter from Medicare notifying her that Patient E had been identified as a doctor shopper. 6. The practitioner continued to prescribe for this patient until 27 February 2022. 7. The patient's medical records demonstrate that on occasions the practitioner provided him with two or more prescriptions at a time. For example, on 31 January 2021, she wrote 4 private prescriptions and 2 prescriptions under the PBS each for 6 x 25 tablets. 8. On 19 November 2021, the practitioner's supervisor added to the clinical notes that he: Explained to Dr Taylor again he is a Medicare documented Dr Shopper and it is in her interests + his interests if she prescribes no more benzos he has capacity to consult a private addiction specialist and be admitted to a private hospital asap. 1. The practitioner continued to prescribe for the patient, writing private prescriptions for large quantities of Temazepam from 23 November 2021 between 50 and 100 tablets at a time. 2. In all, over the time that the practitioner was prescribing for Patient E, she saw patient E 63 times on which she provided him with prescriptions for 3,731 tablets of Temazepam. 3. In the report of the practitioner's supervisor to the Medical Council in December 2021, he raised concerns about the practitioner's prescribing Temazepam for Patient E and suggested that the practitioner was not able to identify the patient as a doctor shopper nor that she needed authority to write the prescriptions he was seeking. The supervising doctor's report indicated that he told the practitioner that her prescribing for patient E was "illegal" and that she should apply for an authority if the patient wanted more drugs. 4. Subsequent notes of other practitioners refer to the patient's history of being a doctor shopper. The practitioner however continued to prescribe for him, even though her own notes recognised that he needed to be treated for addiction. 5. The patient's records show that he frequently attended at the practice to see the practitioner sometimes merely days apart seeking further prescription of Temazepam offering excuses as to why he needed more, such as going away and needing a supply, having torn up or lost prescriptions. On each presentation the practitioner prescribed for him, sometimes writing two or more prescriptions. 6. The nature of the practitioner's prescribing for Patient E was discussed in the reasons for decision of a s150 hearing convened in March 2022. 7. When this information was raised with the practitioner in the s150 hearing she said that "[drug addicted patients] keep coming back to me" and said that she would see them when the other doctors would not. 8. The panel noted that notwithstanding the advice from her supervisor and being contacted directly by Medicare to inform her that Patient E was a known doctor shopper, she continued to prescribe large quantities of Temazepam to him moving to private prescriptions written a few days apart. Peer report in relation to Patient E 1. Dr Kertesz said that prescribing benzodiazepines such as Temazepam carries risks of dependence or abuse which increases with higher doses and long term use and in patients with a history of drug abuse the risks of long term use are further increased. Patients receiving more than the recommended dose of these drugs develop a tolerance which is defined as a need to increase the dose in order to achieve the same therapeutic effect. 2. Dr Kertesz said that it was essential to first assess the patient to determine whether the patient has a history of drug dependence or abuse which can involve contacting other practitioners, checking with Medicare and the Doctor Shopper hotline. If the practitioner believes that the patient is or suspects the patient is drug dependent then it is necessary to obtain an authority to prescribe. 3. Considering that Patient E was receiving both Temazepam and Panadeine Forte, Dr Kertesz said that Panadeine Forte should only be used in patients taking benzodiazepines where other non-opioid analgesics have been tried and found to be ineffective. Panadeine Forte contains an opioid which has potential for addiction misuse and abuse. 4. In relation to the practitioner's treatment of Patient E, Dr Kertesz said that at neither her first consultation nor at any other time did the practitioner conduct a comprehensive assessment of the patient including a broad history, blood tests and full physical examination. Dr Kertesz said that this fell significantly below the standard expected of a practitioner of her training and experience. 5. While Dr Kertesz said while at the initial consultation, the practitioner prescribed Temazepam and Panadeine Forte at an appropriate level, in subsequent attendances, the frequency and quantity of those drugs prescribed fell significantly below the expected standard. 6. The prescription of Temazepam in combination with a Panadeine Forte, a narcotic analgesic is, of itself attended by risk and to prescribe in that combination to a patient who is addicted to benzodiazepine incurs a significantly higher risk of central nervous system depression. 7. Dr Kertesz noted that the practitioner had received notification about Patient E being a "doctor shopper" and had been told and the notes record on four occasions that he was a doctor shopper, yet she continued to prescribe is conduct which falls significantly below the requisite standard. 8. We accept the opinion of Dr Kertesz and are comfortably satisfied that the practitioner's failure to refer Patient E to a drug and alcohol specialist in a timely way, fell significantly below the requisite standard and amounts to unsatisfactory professional conduct. Particulars 14 to 16 1. These particulars concern the practitioner's prescribing and conduct in relation to Patient E during her suspension from practice on 4 March 2022. 2. Particular 14 alleges that between 13 March and 24 July 2022 the practitioner prescribed various quantities of Temazepam for Patient E on 46 occasions in breach of her suspension. 3. Particular 15 alleges that between 13 March and 26 June 2022, the practitioner received approximately $3,285 from Patient E deposited directly into her bank account. 4. Particular 16 alleges that at a s150 hearing convened to consider the practitioner's conduct in this period, she made misleading representations in that she said that all prescriptions written for Patient E were written on different dates in the week before she was suspended and that Patient E altered the dates on the prescriptions and she said she did not write any prescriptions while she was suspended. 5. From 28 February 2022 until 26 August 2022, Patient E was being treated by an Addiction Medicine specialist. On 25 July 2022 in the course of a consultation, the specialist, Dr Hester Wilson became aware that Patient E had presented 4 prescriptions for Temazepam in Canberra and had the drugs dispensed over the previous weekend at 4 different pharmacies. The practitioner was the prescribing doctor in relation to three of those prescriptions; 16 February, 25 June and 24 July 2022. The prescription dated 24 July 2022 was apparently written on a Sunday and dispensed on the same day. On contacting the practice at which the practitioner had worked, Dr Wilson was told that the practitioner had not worked there since February 2022 nor had Patient E been a patient of the practice since that time. Dr Wilson lodged a complaint about the practitioner's prescribing. 6. On 24 August 2022, a s150 hearing was convened to consider the complaint that the practitioner was prescribing while suspended together with other asserted breaches of her conditions. 7. It is uncontentious that the practitioner has been in a precarious financial state for many years. She has been declared bankrupt on a number of occasions and found it difficult to obtain affordable accommodation. She told the s150 panel that during her suspension she ran out of money and accepted assistance from a "friend" being Patient E who said he would pay her rent but, she said, he did not and although he promised her financial support none was forthcoming. 8. The practitioner admitted at the s150 hearing that she met Patient E from time to time after her registration had been suspended and said he used his fuel card to fill her car with petrol. 9. As to the presentation of prescriptions after her suspension, the practitioner denied writing them while she was suspended and insisted that she did not write any prescriptions while suspended. She said that in the week before she was suspended she wrote about 25 prescriptions, all of them dated before her suspension on 4 March 2022 and gave them to Patient E. 10. On 26 June 2022, Patient E made a complaint to the police about the practitioner's prescribing for him. On 7 September 2022, the practitioner was interviewed under caution by the NSW police about the prescriptions. In that interview the practitioner told police that she had not given Patient E all of the prescriptions she had written at once, but kept some at home and she would give them to him usually at the petrol station while he was paying for her car to be filled with petrol and he would deposit small amounts of money into her bank account. The practitioner told police that after she was suspended, she took prescription forms home with her. 11. Police had obtained text messages between the practitioner and Patient E. Given these particulars are now admitted by the practitioner it is unnecessary to set out the communications in detail, however the gravamen of the allegation is well established in the following communication: Dear Tony There is a petstock in Bay Street Broadway. Need some proper dog food please today. Dear Tony Have written the scripts except for your Medicare number Please text it to me and then they are finished. …. I will ring Petstock and ask them to hold the food at the front desk seeing that I gave you 4 scripts 1. The practitioner was charged with knowingly producing false or misleading documents and pleaded guilty. No conviction was recorded, the matter was determined pursuant to s 14(1)(b)of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and the practitioner was ordered to attend a treating psychiatrist within one month and to comply with all and any recommendations in relation to treatment and medication for a period of 12 months. 2. The Tribunal is comfortably satisfied that the practitioner prescribed Temazepam for Patient E after she had been suspended from practice and that he deposited money in her bank account. The coincidence of the provision of prescriptions, the practitioner referring to her need to buy dog food for her pets and the deposits of money into her bank account suggest that Patient E helping her financially in order for her to write the prescriptions. 3. The Tribunal is further comfortably satisfied that the practitioner misled the delegates in the s150 hearing in that she maintained that she did not write prescriptions while suspended and all prescriptions she wrote for Patient E were written in the week before she was suspended. 4. This complaint is therefore made out. Complaint Four 1. Here, the Commission alleges that pursuant to section 144 (d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law. 2. By way of background to this complaint, the Commission repeats the background to Complaints 1-3 and in addition says: On 27 January 2023 at the Downing Centre Local Court the practitioner entered a plea of guilty to a charge of knowingly produce false/misleading document, pursuant to section 307C (1) of the Crimes Act 1900, which carries a maximum penalty of imprisonment for two years or a fine of 200 penalty units, or both. This charge related to the prescriptions provided to Patient E between 4 March and 31 March 2022, following her suspension from practice. 1. The particulars supporting the alleged impairment are: 1. The practitioner has been diagnosed as suffering from a mental illness, namely Bipolar disorder or Schizophrenia or Schizoaffective disorder. 2. On 3 March 2023 at the Downing Centre Local Court the presiding Magistrate determined the charge against the practitioner pursuant to section 14 (1) (b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and ordered that she attend a treating psychiatrist within one month, and comply strictly with all and any recommendations in relation to treatment and medication for a period of 12 months. 1. During the submissions, counsel for the Commission agreed that the fact of the plea and the orders of the Court pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, did not necessarily assist the Tribunal in determining for itself the complaint that the practitioner has an impairment. The background to the complaint and particular 2 were not relied on. 2. Impairment is defined in s 5 of the National Law as a "disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect a person's capacity to practise the profession. 3. Dr Keller, consultant psychiatrist prepared two reports for the Commission, 29 May 2022 and 1 September 2023 following his interviews with the practitioner. Before considering his reports and opinion, we observe that when the second report was prepared, the practitioner was still maintaining that she had not written prescriptions for Patient E while suspended. 4. On the question of impairment, Dr Keller said that the practitioner appeared to have a clear diagnosis of a major mood disorder, being either bipolar disorder or schizoaffective disorder, which is consistent with the diagnosis offered by Dr Berman, the practitioner's treating psychiatrist. Dr Keller referred to Dr Berman's opinion that the most prominent features of the practitioner's mental impairment were the negative symptoms of schizophrenia and noted that some of the negative symptoms of schizophrenia include difficulty in organisation and planning, judgment and executive function and Dr Keller thought that there were signs that the practitioner may have difficulty with executive functioning. 5. Dr Keller said that there are clear signs of impaired judgment within the practitioner's practise of medicine and while suspended in her decision to provide prefilled and undated prescriptions to Patient E as well as continuing to meet him in "… an increasingly hectic fashion, exchanging prescriptions for money and other material goods, reveals substantial and sustained impairment and disordered judgment." 6. Dr Keller continued and said that it was reasonable to conclude that the impaired judgment may be part of a persistent or progressive frontal executive dysfunction related to an underlying schizoaffective disorder. It could also relate to enduring personality characteristics such as personality disorder. 7. Dr Keller said that the practitioner has longstanding difficulties in interpersonal functioning in both professional and personal settings and her impaired judgment is exemplified by her inability to manage patients. Her dysfunctional relationship with Patient E demonstrates this and in circumstances where the practitioner acknowledged that the patient was controlling her, felt unable to access help and concealed from her supervisor the position in which she found herself. 8. Dr Keller referred to the practitioner's consistent inability to comply with the conditions imposed on her registration which Dr Keller thought could be related to several personality and cognitive traits including carelessness and poor organisations skills and wilfulness. 9. The practitioner has not been able to establish an appropriate or effective supervisory structure. She has found herself in situations created by her supervisors where could not refuse her supervisor's demands and was prepared to ignore her conditional practising. 10. The practitioner's inability to be authoritative and establish clear professional boundaries places her at risk of being exploited and Dr Keller thought this was most clearly demonstrated by the control Patient E took over her in seeking drugs from her. 11. In summary, he concluded that the practitioner has an impairment in that she has chronic schizoaffective disorder and a significant personality disorder of undifferentiated type. The principal ongoing feature is chronic negative symptoms as Dr Berman suggests. 12. To find this complaint made out, the Tribunal must be satisfied that the practitioner has an impairment as defined and that it detrimentally affects or is likely to detrimentally affect her capacity to practise medicine. We are comfortably satisfied as to both limbs of the test and find that the practitioner has an impairment as defined in the National Law. Complaint Five 1. In this Complaint, the Commission asserts that the practitioner is not competent to practise medicine within the meaning of s139(a) of the National Law in that she lacks the mental or physical capacity to practise as a medical practitioner. 2. Section 139(a) of the National Law defines a person to be competent to practise as a health professional if the person: 1. has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and 2. has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. The Commission relies on the particulars supporting Complaints One to Four to support this Complaint. 2. Dr Keller's report addressed this aspect in his report of September 2023 much of which has already been referred to in relation to our conclusion of impairment. The deficits the practitioner has shown in her inability to manage the professional relationships necessary to her practise as a general practitioner and an apparent inability to reflect and develop insight were matters to which Dr Keller referred as showing that the practitioner did not have the mental capacity to practise medicine. Further Dr Keller thought that the practitioner's communication skills demonstrate a rambling thought form and show a rigid way of approaching clinical problems which means that she may miss subtle clues with which patients or their carers may present. 3. A finding of impairment does not necessarily lead to a finding that a practitioner is not competent to practise. While competence and impairment are different concepts, it is accepted that the existence of an impairment which is likely to detrimentally affect a person's capacity to practise medicine may well lead to a finding of a lack of competence to practise medicine. (Lindsay v Health Care Complaints Commission [2010] NSWCA 194). 4. This is such a case and we are comfortably satisfied that the practitioner is not competent to practise medicine and this complaint is made out. Complaint Six 1. The Commission alleges that the practitioner is guilty of professional misconduct under s139E of the nation law in that she has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. 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. The Commission relies on all of the complaints established to demonstrate professional misconduct. 2. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], the Court characterised professional misconduct: 19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 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. … Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …" 1. A finding of professional misconduct clearly by its terms, speaks to serious conduct. 2. In relation to the practitioner's breach of the conditions on her registration, in determining whether the practitioner's conduct is of sufficient seriousness to amount to professional misconduct, we take into account that at the time the health conditions were imposed the practitioner was found to be impaired and that the purpose of the imposition of the conditions was to ensure the safety of the public while allowing the practitioner the right to practise. 3. It is well established that prescribing drugs of addiction recklessly or in contravention of the law can constitute professional misconduct. 4. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Kirby P said at [200]. As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner … 1. The practitioner's conduct in relation to patients D and E in prescribing for them drugs of addiction is of itself, in our opinion, sufficient to warrant a conclusion of professional misconduct. 2. The other established complaints, when considered separately or together, satisfy the Tribunal that the practitioner is guilty of professional misconduct. Protective Orders 1. While the practitioner did not attend the hearing nor did her lawyers participate in the proceedings, the practitioner sought leave to make submissions on the length of time in which she may not apply to be re-registered. At the conclusion of the hearing, directions were made for those submission to be made in writing and the practitioner provided submissions as to what protective orders should be made. 2. No better starting point for a discussion about what consequences should flow from our finding the complaints proven than that which Meagher JA said in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: 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 Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Santow JA said that the orders not only protect and maintain high standards but: "There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so". 2. In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] Basten JA said: As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist. (citations omitted) 1. It is against this context that we turn to consider what protective orders should flow from the Tribunal's finding the complaints established. 2. The Commission submitted that the practitioner's registration should be cancelled and the submissions made on behalf of the practitioner accept that position. 3. In this case the Tribunal is of the view that no order but the cancellation of the practitioner's registration would operate to fulfill the protective and other functions of orders made under the Act. 4. The Commission's submissions seek an order that the practitioner not seek to be re-registered within a period of 2 to 3 years. In support of that position, the Commission submitted that there is no foreseeable likelihood that the practitioner will become fit to practise in the near future. It was also submitted that the practitioner led no evidence of contrition, remorse or of any steps taken by her in relation to her mental state or in relation to her future plans. 5. For the practitioner, it was argued that here a significantly shorter non-review period should be imposed than that submitted as appropriate by the Commission and it was argued that a period of 12 months was appropriate. 6. The Tribunal notes that the practitioner's submissions included a report from the practitioner's treating psychiatrist, Dr Berman and a letter from the practitioner's sister. Counsel for the Commission properly points out that no leave was given for the practitioner to rely on evidence outside that which was before the Tribunal during the hearing. Further, it seems that both documents were prepared before the Tribunal hearing and no explanation was advanced as to why they did not form part of the evidence on which the practitioner relied in the Tribunal hearing. 7. The letter to the Tribunal from the practitioner's sister spoke to the practitioner's family life and their association with her in the recent years. She spoke of the practitioner's kindness and other good qualities. We do not doubt that she has those qualities. The letter is somewhat critical that the practitioner was not sufficiently supported when unwell and that she received no help to improve her situation. We do not accept that was the case, however, are prepared to accept that the criticism reflects her sister's perception. 8. Turning to the report of Dr Berman dated 10 November 2023, he indicates that he reviews the practitioner every two weeks by telephone. He said her mental state remains stable and he has not elicited any psychotic symptoms or severe mood symptoms. He expresses a "hope" that the practitioner could return to practice "… perhaps with some mechanism for supervision". 9. The submission of the practitioner in relation to this report, contends that the practitioner's present condition is improved since she was seen by Dr Keller who examined her for the Commission, arguing, in effect, that while Dr Keller's opinion was that at the time of the practitioner's professional misconduct she had "lapsed into depression during the most stressful period just prior and after the suspension of her registration", the report of Dr Berman paints a different picture of the practitioner's mental health. 10. Counsel for the Commission objects to the practitioner relying on the opinion of Dr Berman in circumstances where there has been no opportunity to question him. 11. While it was entirely a matter for the practitioner not to attend and participate in the Tribunal proceedings, there was no barrier to those representing her from appearing and questioning witnesses, for example Dr Keller. Clearly the point sought to be made in submissions about the practitioner's health was one on which Dr Keller's opinion could have been sought. 12. Where, as here, support for the practitioner's position is sought to be drawn from a comparison between Dr Keller's last report and the most recent report of Dr Berman, fairness dictates that the Commission, should have had an opportunity to question Dr Berman on his report. Absent that questioning, the Commission argued that in the circumstances, Dr Berman's report should be afforded little weight. 13. It is to be observed that in his report of October 2020, which was before the Tribunal, Dr Berman said he had elicited no psychotic symptoms in the practitioner but said that the practitioner's main disability was because of the negative symptoms of schizophrenia and he referred to her lack of capacity to manage her finances and interpersonal relationships as being reflective of this. These are the same matters to which Dr Keller referred in his report as to the practitioner's impairment and capacity. Whether the practitioner's present mental health is improved from when Dr Keller examined her, is difficult to discern taking into account Dr Berman's earlier reports about the impact of the negative symptoms of schizophrenia on her functioning. 14. For the practitioner, it was submitted that Dr Berman's most recent report "provides some support for a return to medical practice at some point in the future". We are prepared for the purposes of the submissions on protective orders to accept that at some point, the practitioner may indeed be able to demonstrate that she can be re-registered as a medical practitioner. 15. The question for the Tribunal is however, not if but when that might be. Other than Dr Berman saying he conducts fortnightly reviews of the practitioner, there is nothing before the Tribunal as to the practitioner's plans for her future mental health how she can ensure stability of her mental health or what structures she has or will have in place to support her mental health while practising. 16. In coming to a conclusion about the period in which the practitioner may not seek to be re-registered, we have taken into account the very long period in which she was practising with health and practice conditions and the repeated breaches of some of those conditions over that period. In particular we take into account the practitioner's apparent difficulty in nominating and maintaining a therapeutic relationship with a general practitioner which was a condition aimed at ensuring her mental health was monitored and assessed from time to time. We have also taken into account Dr Keller's opinion about the cause of the practitioner's difficulties in managing professional relationships. We have also taken into account the direct impact of the practitioner's mental health on the conduct to which the complaints refer and the consequences of that conduct. These are issues which throw into stark light the need for the practitioner to have in place protective mechanisms and support for her own health to ensure she can practise safely. 17. We are thus of the view that there should be a period of two years from the date of these orders before the practitioner may apply to be re-registered. Costs 1. The Commission also sought an order that the practitioner pay the Commission's costs of the proceedings. The practitioner opposed an order for costs, arguing that in not taking issue with the complaints or the particulars supporting them did what she could to facilitate a shorter proceeding. 2. The commission argued that while the hearing was truncated by the practitioner's concessions, it was her conduct and her mental health which precipitated the proceedings and she should none the less be ordered to pay the costs of the proceedings. 3. For the practitioner, it was argued that she is impecunious and is not working and it was asserted that she has little ability to personally pay any costs order made. The practitioner's parlous financial state was a significant feature of the evidence in the case. There can be little doubt that she would be unable to personally pay any costs ordered. 4. Clause 13 of Schedule 5D of the National Law provides the Tribunal power to award costs. It is accepted that the "usual rule" in relation to costs is that they follow the event and, here it was not disputed that the Commission was entitled to seek its costs from the practitioner. Impecuniosity is not however regarded as a basis for departing from the usual rule. (Health Care Complaints Commission v Philipia [2013] NSWCA 342 at [42]), rather, the authorities have looked at disentitling conduct in the Commission to determine whether there should be a departure from the rule. Here, none was identified nor, in our view was there any such conduct. 5. However, impecuniosity being the only basis on which it was argued that the practitioner should not be ordered to pay the Commission's costs of the hearing, we are not satisfied that it is sufficient to cause a departure from the usual rule and we will order the practitioner to pay the Commission's costs of the hearing. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2023