New South Wales Medical Tribunal CITATION : In Re Dr Peter Keith [2007] NSWMT 12 TRIBUNAL: Medical Tribunal PARTIES : Dr Peter Keith Health Care Complaints Commission (HCCC) FILE NUMBER(S) : 40026 of 2006 CORAM: Rein, SC DCJ - Harris, Dr B - Harris, Dr N - Collier Ms A CATCHWORDS: General practitioner inappropriately prescribed benzodiazepines and Pethidine to drug dependent patients when he knew or ought reasonably to have known of their drug dependence - Practitioner prescribed in inappropriate circumstances and on occasions without authority to prescribe - Practitioner admits his conduct was sufficiently serious to constitute professional misconduct - $20,000 fine imposed - Right to prescribe Schedule 4 and Schedule 8 drugs removed - Other conditions imposed LEGISLATION CITED: Medical Practice Act 1992 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) HCCC v Karalasingham [2007] NSWCA267 [67]; A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253 ; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320; Ex parte Lenehan (1948) 77 CLR 403 ; Prothonotary v Ritchard (BC8701242, NSWCA 31 July 1987); CASES CITED: NSW Bar Association v Maddocks (NSWCA 23 August 1998); Gad v HCCC (2002) NSWCA 111 ; HCCC v Litchfield (1997) 41 NSWLR 630; NSW Bar Association v Meakes [2006] NSWCA 340 ; Parkes v Crittenden (1965) 114 CLR 164 ; Spicer v NSW Medical Board (NSWCA 19 February 1981 unreported) DATES OF HEARING: 3, 4, 5, 6 December 2007 DATE OF JUDGMENT: 19 December 2007 LEGAL REPRESENTATIVES: Mr M. Lynch (HCCC) Ms A Katzmann S.C. (Dr Keith) ORDERS: 1. Dr Keith is fined $20,000 in respect of his professional misconduct in the period 1998 to 2003.; 2. Conditions imposed on Dr Keith's right to practice (as set out in published reasons for judgment).; 3. Dr Keith to pay the costs of the proceedings. JUDGMENT: ORDERS The Tribunal orders: 1 That Dr Keith be fined $20,000 in respect of his professional misconduct in the period 1998 to 2003. 2 That the following conditions be imposed on Dr Keith's right to practice: Education 1.1(i) Dr Keith is ordered to complete a relevant course(s) of education or training in the effects of and the prescribing guidelines in relation to Schedule 4, Schedule 4D and Schedule 8 drugs, and (ii) Dr Keith is ordered to complete a relevant course(s) of education or training in relation to record keeping approved by the NSW Medical Board ("the Board") within a period of time specified by the Board. Dr Keith is to obtain the Board's approval for the course within 3 months of the date of the Tribunal's order. (iii) Within two weeks of completing the course, Dr Keith is to provide evidence to the Board that he has satisfactorily completed the course. Counselling 1.2 Dr Keith is to attend on a psychiatrist for the purpose of counselling in relation to prescribing issues and dealing with addicted patients demands for a period of 12 months from the date of the first consultation (which is to be within 3 months of the date of this decision). Dr Keith is to notify the Board of the name and professional address of a psychiatrist who has agreed to act in that capacity on the following bases: (i) The psychiatrist must provide a curriculum vitae to, and be approved by, the NSW Medical Board, (ii) Dr Keith is to provide the approved counsellor with a copy of the Tribunal's decision, (iii) Dr Keith is to authorise the approved counsellor to provide the Board: (1) with a report of Dr Keith 's progress in approved format on a 3 monthly basis; and (2) notify the Board immediately if there are any concerns or issues in relation to Dr Keith's compliance with any condition or if the counselling relationship ceases. (3) In the event that the approved counsellor is no longer willing or able to continue to provide counselling, Dr Keith is to nominate another psychiatrist for approval by the NSW Medical Board within 28 days of the cessation of the original counselling relationship. (4) All expenses associated with the counselling as set out in this condition are to be met by Dr Keith. Supervision 1.3 Dr Keith is to nominate a supervisor within six weeks from today to be approved by the NSW Medical Board to monitor and review his clinical practice in accordance with Level 3 supervision of the NSW Medical Board's Guidelines. The supervisor is to be provided with a copy of the NSW Medical Board's Guidelines for Supervision, and a copy of this decision. The cost of the supervision is to be borne by Dr Keith. Dr Keith and the supervisor are to: (i) Meet on a monthly basis for at least 2 hours; (ii) Meeting must address prescribing practices, including the effects of drugs prescribed. (iii) At each meeting the supervisor is required to complete a record of matters discussed at the meeting in a form approved by the Board; (iv) The supervisor is required to forward to the NSW Medical Board initially on a 6 monthly basis a report in a format approved by the NSW Medical Board (v) The supervisor is required to notify the NSW Medical Board immediately if there are any concerns or issues in relation to Dr Keith's practice of medicine or if the supervision relationship ceases. Dr Keith is to authorise the supervisor to provide such information to the Board. Auditing 1.4 That Dr Keith is to submit to a random audit of his/her medical records by a person or persons nominated by the Board to monitor compliance with Schedule 2 of the Medical Practice Regulation 2003 within 6 months of today's date and subsequently as required by the Board. Dr Keith is to authorise the said person or persons to prepare for the Board a report of his/her or their findings. Dr Keith is to meet all costs associated with the audits and any subsequent reports. Prescriptions 1.5 That for a period of at least 2 years from the date hereof, Dr Keith is not to prescribe: a) Benzodiazepines or b) Schedule 8 drugs 1.6 That Dr Keith must only work in a group practice (defined as at least three practitioners) in which all practice members are aware of the conditions on his registration and may only consult patients when there is another registered medical practitioner also on site. 1.7 That Dr Keith not supervise or train other medical practitioners employed at his group practice with respect to the management of drug dependent patients, unless with the approval of the Board and, in any event, not for a period of 12 months from the date of this decision. 1.8 That Dr Keith is to seek NSW Medical Board approval prior to changing the nature or place of his practice. 1.9 That Dr Keith consents to the exchange of information between Medicare Australia and the NSW Medical Board. Other 2. That the conditions may be varied, amended or reviewed by the NSW Medical Board 3 That Dr Keith pay the costs of the proceedings. REASONS 1 The Health Care Complaints Commission ("HCCC"), for whom Mr Lynch of Counsel appears, brings these proceedings against Dr Peter Keith ("Dr Keith") pursuant to s.51 (1) of the Medical Practice Act 1992 ("the Act"). Ms. A Katzmann S.C. appears for Dr Keith. 2 The HCCC makes a complaint that Dr Keith has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s.36 and s.37 of the Act in that (a) Dr Keith's conduct has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (b) he has engaged in improper or unethical conduct relating to the practice of medicine. 3 In order to avoid any possibility that the patients whose treatment has been the focus of the hearing might be identified, we shall refer to them as Patient A, Patient B, Patient C, Patient D, Patient E, Patient F and Patient G. The HCCC and Dr Keith know the names corresponding to each letter used. In addition, the file of another patient who we shall call Patient H was tendered for reasons we shall explain. References in reports quoted and in transcript have been amended to avoid identification. 4 The particulars provided relate to seven patients. The particulars all related to the prescription of benzodiazepines (temazepam, oxazepam and diazepam) and the narcotic Pethidine and are in the following form, (omitting the schedules of prescribing which were attached): COMPLAINT ONE Has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s.36 and s 37 of the Act in that: He has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or; Has engaged in improper or unethical conduct relating to the practice of medicine, and/or; Particulars At all relevant times the practitioner worked as a general practitioner in rooms at Wagga Wagga. Patient A 1. The practitioner prescribed benzodiazepines (temazapam and [oxazepam]) to Patient A on the dates and in the quantities set out in the schedule attached and marked A; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) in quantities and for periods in excess of recognised therapeutic standards of what is medically appropriate; (c) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused (d) when such prescribing was contraindicated as Patient A had a history of drug dependency. Patient B 2. The practitioner prescribed benzodiazepines (diazepam and temazapam) to Patient B on the dates and in the quantities set out in the schedule attached and marked B; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) in quantities and/or for periods in excess of recognised therapeutic standards of what is medically appropriate; (c) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused (d) when such prescribing was contraindicated as Patient [B] had a history of drug dependency. (e) On or around 18/09/01 the practitioner supplied a prescription for diazepam to Patient B in circumstances where the practitioner knew or ought to have known that the risk of overdose was extremely high due to the patient's recent release from gaol and history of overdose. Patient C 3. The practitioner prescribed Pethidine, a drug of addiction to Patient C on the dates and in the quantities set out in the schedule attached and marked C; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) in quantities and/or for periods in excess of recognised therapeutic standards of what is medically appropriate; (c) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused (d) when such prescribing was contraindicated as Patient [C] had a history of drug dependency. (e) For a period in excess of 2 months without an authority, contrary to s.28 of the Poisons & Therapeutic Goods Act, 1966. Patient D 4. The practitioner prescribed benzodiazepines (diazepam and temazapam) to Patient D on the dates and in the quantities set out in the schedule attached and marked D; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) in quantities and/or for periods in excess of recognised therapeutic standards of what is medically appropriate; (c) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused (d) when such prescribing was contraindicated as Patient D had a history of drug dependency. Patient E 5. The practitioner prescribed benzodiazepines (diazepam) to Patient E on the dates and in the quantities set out in the schedule attached and marked E; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) in quantities and/or for periods in excess of recognised therapeutic standards of what is medically appropriate; (c) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused (d) when such prescribing was contraindicated as Patient [E] had a history of drug dependency. 6. On or about 5/11/01 the practitioner failed to seek urgent psychiatric advice and treatment for patient A, who had a dual diagnosis of drug disorder and psychiatric disorder, was in acute withdrawal from opiates and had ceased taking prescribed medication. Patient F 7. The practitioner prescribed benzodiazepines (diazepam) and codeine compounds (Panadeine Forte) to Patient F on the dates and in the quantities set out in the schedule attached and marked F; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) without taking an adequate history and instituting a recognized detoxification schedule; (c) in quantities and/or for periods in excess of recognised therapeutic standards of what is medically appropriate; (d) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused; (e) when such prescribing was contraindicated as Patient F had a history of drug dependency. Patient G 8. The practitioner prescribed benzodiazepines (diazepam) to Patient G on the dates and in the quantities set out in the schedule attached and marked G; (a) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; (b) in quantities and for periods in excess of recognised therapeutic standards of what is medically appropriate; (c) when the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be abused (d) when such prescribing was contraindicated as Patient [G] had a history of drug dependency. 9. On or around 21 May 2001 until 18 August 2002, the practitioner prescribed and [sic.] methadone hydrochloride for a period in excess of 2 months without an authority, contrary to s.28 of the Poisons & Therapeutic Goods Act, 1966. 10. The practitioner failed to make proper records of his treatment of Patients A to G in accordance with requirements of the Medical Practice Regulation 1998 in that his records did not include: (a) Information relevant to his diagnosis and treatment of the patients; (b) The patients' medical history; (c) The results of physical examinations performed; (d) Plan of treatment for the patients; (e) Advice given to the patient. 2. 5 Dr Keith admits the complaint and all of the particulars save for some of the alleged prescriptions relating to Patient C, which were added at the commencement of the hearing ("the additional particulars"). He also admits that his conduct was sufficiently serious to justify suspension or deregistration. He also admitted that insofar as he was in breach of the Poisons and Therapeutic Goods Act 1966, and the Medical Practice Regulation his conduct was improper and unethical. In our view these admissions were correctly made. He submits however that for reasons we shall outline he ought not be suspended or deregistered. 6 In respect of the additional particulars, Dr Keith admits that he administered to Patient C Pethidine on each of the alleged occasions (i.e. 26 March, 8 April, 11 April, 19 April, 24 June, 17 July, 21 July, 19 October 2001, and 18 March and 6 August 2002) but he does not admit that he 'prescribed' Pethidine on each of those occasions and that is how the additional particulars have been framed. On one view nothing turns on the additional particulars because of the admission that in prescribing on all the other occasions particularised Dr Keith was guilty of unprofessional conduct and indeed professional misconduct: see paragraphs 7-9 of Dr Keith's statement, Exhibit 1, Tab 1. 7 Notwithstanding the admissions the Tribunal has had tendered to it considerable detail about the circumstances in which the narcotic drugs were prescribed (and administered). 8 On the issue of whether or not Dr Keith prescribed Pethidine on those occasions where no script was issued but he injected Patient C, there was little said. In our view, Dr Keith did 'prescribe' Pethidine, even though he wrote no prescription because he selected the Pethidine from his doctor's bag for administration to Patient C. The Macquarie Dictionary defines the meaning of 'prescription' in a medical context as: "2. Medicine to designate or order for use, as a remedy or treatment." Dr Keith, whilst not writing a prescription, did designate Pethidine for use as a treatment. Dr Keith 9 Dr Keith graduated from the University of New South Wales in 1968 MBBS, was registered as a medical practitioner in 1969 (see Exhibit C) and received a Diploma of Tropical Medicine and Hygiene from Liverpool University in the United Kingdom. He worked from 1973 to 1979 in Tanzania as a medical missionary. He commenced practice in 1981 in Wagga Wagga. 10 In 1993 he founded the Wagga Wagga and District Division of General Practice Riverina Division of General Practice. From 1981 to the present he has been a Visiting Medical Officer ("VMO") at Wagga Wagga Base Hospital and Calvary Hospital. 11 In 1996 he became registered as a methadone prescriber. 12 Although he has always practiced at Kooringal Road Surgery in association with several other doctors, since 2004 the practice has been known as KRS Health and has incorporated a practice at Fernleigh Road in another part of Wagga Wagga. 13 He has been a member of a clinical reference group and of an Aged Care Committee, and a board member of the Wagga Wagga General Practitioner After-Hours service and a participant of that organisation. He has from 1998 to 2002 participated in Continuing Education Courses (see Exhibit 1, Tab 4). 14 Dr Keith tendered references from Dr P. Renshaw (who, whilst he does not say so, is Dr Keith's GP), Ms Nancye Piercy PSM, Chief Executive Officer of the Riverina Division of General Practice and Primary Health Ltd., Dr Rod Burgess, an associate in KRS Health, and Dr Brian Driver, a former associate in the practice, and Dr David Tillett, a general practitioner with a specialty in drug and alcohol treatment who met with Dr Keith following investigation conducted by the Pharmaceutical Services Branch (the "PSB") of NSW Health and who also provided a positive reference. 15 The HCCC tendered a report of Dr Raymond Seidler, a general practitioner with extensive experience in dealing with drug issues. Apart from two points of criticism that were levelled at the report and to which we shall later refer, Dr Keith accepted all that Dr Seidler had to say. In setting out the relevant histories, we have drawn much from the report of Dr Seidler as it is. 16 On 5 February 2003 Mr Max Szcwarcberg of the PSB visited Dr Keith at his surgery and interviewed him in relation to his prescription of Pethidine and diazepam. We shall refer to that interview as "the PSB interview". 17 In August 2003 as a consequence of the PSB interview, Dr Keith met with Associate Professor Paul Haber and Dr Tillett for a clinical interview. The report of this meeting described Dr Keith as "satisfying the interviewers that he understood the concerns and that his practice is now improved": Exhibit A, Tab 6. They did suggest that the PSB might wish to review his practice in six month's time "to ensure practice change is sustained". That review did not occur. Patient A 18 On 25 October 2002 Dr Keith prescribed a benzodiapine (oxazepam) for Patient A, and again on 11 November, 26 November, 4 December, 11 December 2002 and 28 November and 10 January 2003. Patient A had a family history of benzodiazepine dependence (see page 1, Tab 7) known to Dr Keith. The medical records kept by Dr Keith contain a number of references that indicate prescription of benzodiazepines without any other history. In the PSB interview Dr Keith agreed that Patient A had been for a long time addicted to benzodiazepine: p.21.10-15, PSB interview, Exhibit A, Tab 4. Dr Seidler said: "I believe this patient has a high probability of being benzodiazepine dependent even though the medical records do not clearly show this due to a lack of detail. He should have been treated appropriately with a reducing regime of a long acting benzodiazepine like diazepam prescribed in a controlled setting. There is no evidence of such control from Dr Keith's notes. The regime is largely prescribing on demand. Dr Keith has departed from an acceptable standard of care and the departure from the standard invites my disapproval. My degree of disapproval in this case is severe. I believe the departure of the standard would invite the disapproval of the general body of my colleagues". (Our emphasis). Patient B 19 Patient B was a methadone patient of Dr Keith's. Dr Keith admitted in the PSB interview that he prescribed a benzodiazepine to Patient B in the street at Patient B's request on 18 September 2002. There is no record in Dr Keith's notes of his having prescribed a benzodiazepine to Patient B on that date. In his evidence before the Tribunal he said that he had offered to prescribe Valium to Patient B because Patient B had just been released from gaol. Dr Seidler said: "Regarding this incident, an acceptable standard of care would not be to prescribe diazepam to a patient with a history of heroin dependence who had been recently released from jail, particularly in the light of the fact that Dr Keith had prescribed methadone to this patient before and that there had been a history of overdose. The potential for such a patient to take an excessive dose of diazepam in the presence of injected heroin is extremely high. By providing diazepam in a public street without control and clear guidance to the patient, such risks would be magnified. The acceptable standard of care would have been to engage such a patient in rooms and to formulate a care plan involving the use of the community pharmacy if diazepam were to be used for the detoxification of such a patient. This should be done with a controlled daily pickup at a dispensing pharmacy engaged by the doctor with a patient being seen on a daily or second daily basis in the doctor's rooms. It is important to monitor such patients because their risk of overdose, even a controlled setting is high. An alternative acceptable standard of care would be to apply for him to enter a methadone maintenance program, as a matter of urgency. Such patients are at their most vulnerable immediately after being released from prison and having commenced injecting heroin. Many such patients frequently overdose and die in the days and weeks after their release as their tolerance to opioids and benzodiazepines is reduced. Dr Keith's prescribing would well have contributed to such an outcome. The departure from the standard of care invites my disapproval and would I believe invite the disapproval of the general body of my colleagues. My degree of disapproval in this matter is severe". (Our emphasis). In the case of Patient B there is the further fact that Dr Keith saw him on 4 May 2006, and he prescribed a benzodiazepine (oxazepam) and continued to do so until mid 2007. He knew that Patient B had abused benzodiazepines in the past and he claims that he attempted to wean Patient B off benzodiazepines but did admit that this was "slowly, quite slowly": T54.55. It was only after the audit process in May 2007 (four years after he had undertaken to conduct such a review) that Dr Keith put in place a strategy for weaning Patient B off benzodiazepines. Patient C 20 This patient had been a patient of the practice since 1991. From 1991 to 1998 she had been treated inter alia for migraine headaches with prescription of morphine. In 1998 and up until 2003, whilst under the care of Dr Keith principally, Dr Keith prescribed Pethidine for her on many occasions. To do so over a period longer than two months, Dr Keith was required under the Therapeutic Goods Act 1966 s.28 and s.29 to hold an authority to do so, which he never did hold. Dr Seidler pointed out that there was no evidence of Dr Keith recording any real plan for Patient C – and little evidence of any physical examination in the records. Dr Seidler said: "Dr Keith should have realised that this patient was drug dependent and treated her appropriately, particularly in the light of the fact that he was a methadone prescriber. It would have been more appropriate to assess this patient and give alternative treatment, safer medication for her opioid addiction rather that providing her with injectable pethidine, a highly reinforcing drug that perpetuates addiction in this vulnerable population. Dr Keith's departure from the standard invites my disapproval and my degree of disapproval is moderate. I believe the departure of the standard would invite the disapproval of the general body of my colleagues". (Our emphasis). 21 Dr Keith's summary of treatment of Patient C (at Tab 18) made reference to Dr Martin Jude's report. Dr Jude is a Wagga Wagga-based neurologist to whom Dr Keith referred Patient C in 1998. Dr Jude's report of March 1998 is Exhibit F. 22 In his report Dr Jude says of Patient C: "she is a narcotic dependent migraine sufferer but the original migraine has been lost in the mists of time and the dominant problem is really her narcotic use. No other medication or therapeutic adjustment will make any significant difference while she continues on her current regime". Dr Jude noted that over the last 20 years she has had Pethidine several times a week for the headaches. He wrote: "I told her that she has to come to some decision about her narcotic use. While she continues to have narcotics her headaches will not come under control…she is going to think over the issue in some depth and come to see you to discuss the issues further regards her ongoing decision regarding narcotic use". 23 Notwithstanding Dr Jude's recommendation, Dr Keith has no note of ever having discussed the issue of narcotic dependency with Patient C. Dr Keith agrees that he would have seen Dr Jude's report. Dr Keith had no recollection of having spoken to Patient C about the narcotic dependence. Indeed, it is his case that he did not appreciate that she was addicted to Pethidine and that she was using him as a supply by pretending to have migraines so severe that she required injection. Dr Keith accepts now that he ought to have appreciated that Patient C was or might be addicted to Pethidine but he does not admit that he knew she was. 24 Given Dr Jude's report it is difficult to accept that Dr Keith did not appreciate she was or at least might be an addict. This is strengthened by Dr Seidler's reference to the absence of reference to physical examination, and by reference to the notes of the practice because they reveal that two other doctors who came to treat Patient C made notes that recognised the possibility or probability that Patient C was an addict or at least were consistent with that conclusion. Dr Goddard on 2 June 1998 wrote: "I note Dr Jude's letter: 'and raised need for C to see Dr Keith to discuss. Dr Goddard did not prescribe narcotics and noted that the patient "walked out moderately brightly cf entering" (p.35, Exhibit F). On 5 February 2000, Dr Saldever, then an employed practitioner made a note "query migraine since 3 days ago. Had Stemetil, wants Pethidine injection. Patient walked out while I was explaining use of Pethidine in treatment of migraine. Explained that we don't have Pethidine in surgery that I might try to have a look. Patient left" (see T19.25, Day IV). 25 One of the features of Patient C's treatment is that although she had had cardiovascular disorders and was on medication that suggested ongoing cardiovascular disease, Dr Keith agreed that he only measured he blood pressure on two occasions: T69.4-16, T74.37-49 (Day 2) and that this was inadequate. The Tribunal has a concern that Dr Keith focussed on dealing with the patient's demand for narcotics and was not sufficiently attentive to her other treatment. Dr Seidler's view that Pethidine was never a suitable remedy for migraine was challenged because although the 2002 Guidelines contained support for use of Pethidine, the 1998 Guidelines (Exhibit 3) did state that in very rare cases it could be used, although it did also contain the following: "Awareness of an escalation of pethidine dose or administration frequency should be cause for reassessment in regard to psycho-social factors, drug dependence and doctor shopping. Contact should be made with an appropriate specialist for early advice. The patient should be referred to a specialist or pain clinic as soon as a problem is suspected". A number was given for drug and alcohol specialist advice. We have already described Dr Keith's failure to act on Dr Jude's advice. Patient D 26 Between October 1999 and December 2002 Dr Keith prescribed benzodiazepines to Patient D. Patient D had a history of using amphetamine, heroin and marijuana, and of depression, anxiety, insomnia and he drank alcohol each day according to Dr Keith's notes. Patient D would not accept advice to go on the methadone program, expressing a desire to undertake a home detoxification program. It appears that Dr Keith prescribed benzodiazepines each time that Patient D attended at the surgery. Dr Seidler draws attention to the lack of information in the notes but there is reference to a home visit in June 2002 in which there is a note of significant drinking and use of intravenous drugs, possibly amphetamine. Dr Keith appears to have attempted to keep Patient D's self-administration under control according to Dr Seidler, but: "The disturbing picture painted by these medical records of [Patient D] is of a patient who is chronically addicted to a number of drugs and has a high suspicion of having a major psychiatric disorder as well. There is evidence of violence, infections, criminal behaviour as well as chronic depression and anxiety. In my view the prescription of Valium and tempazepam to such a patient, without adequate safeguards, on an ongoing basis and without a clear attempt to withdraw this patient in a controlled setting does not conform to an acceptable standard of care by a GP. An appropriate standard of care would have involved either an inpatient detoxification or a controlled outpatient detoxification using a community pharmacy and a drug and alcohol facility, in a shared care manner to facilitate the withdrawal of this patient from benzodiazepines. [Patient D] should have been appropriately assessed for methadone maintenance and Dr Keith should not have continued to prescribe benzodiazepines on demand for this patient in the light of his co-morbid conditions and his chaotic lifestyle. As a methadone prescriber Dr Keith should have been particularly sensitive to the needs of this vulnerable patient and not engaged continuing to prescribe hazardous medication. He had access to methadone services as a prescriber. The benzodiazepines are known to make such patients more chaotic and make the risk of falls, assaults and general disinhibition much more common. Their prescription to this patient group in uncontrolled fashion, when such patients continue to abuse street drugs, often leads to criminal charges and incarceration. It should not have occurred within the context of a practitioner authorised to treat heroin dependence with methadone. I believe that in relation to [Patient D] that Dr Keith departed from the standard of care, which I have established above, and this invites my disapproval. My degree of disapproval is severe. I believe that the departure of the standard would invite the disapproval of the general body of my colleagues." (Our emphasis). Patient E 27 In November 2001, Dr Keith administered intravenous diazepam to Patient E. Patient E was known to be dependent on heroin. Patient E's partner told Dr Keith on 5 November 2001 that Patient E had used illicit substances on the day before. Dr Keith provided ampoules of benzodiazepines and a butterfly cannula to Patient E for intravenous self-administration. On 15 November 2001 Dr Keith provided a medical consultation and prescription for benzodiazepines to Patient E in a public park near Patient E's home. Patient E's partner strongly disapproved of Dr Keith's conduct and made this clear to Dr Keith, banning him from coming to their home: T11.25-T12. Patient E's partner had apparently told Dr Keith that Patient E was addicted to benzodiazepines: T12.25-39 (Day 2.) 28 Dr Keith's clinical notes for Monday 5 November 2001 record that Patient E had used "1 gram of heroin on the weekend in Sydney withdrawing from that. He had stopped Zyprexa. Tends to drop off methadone". Dr Keith's notes for 6 November 2001 contains this: "was doing okay last week then he shot up about a thousand worth of heroin in Sydney on the weekend. He refused oral Valium. He had 20mg of diazepam intravenously." 29 In the PSB interview, Dr Keith stated that he gave Patient E a butterfly cannula because he had watched Patient E inject Valium himself because the patient had insisted on it and "had made a huge botch of it". De Keith told Mr Szwarcberg that he was unaware that Patient E had a problem with benzodiazepines and was happy to leave him ampoules for self-administration after giving Patient E 20mg of diazepam intravenously. Dr Seidler said: "In the light of this patient's previous treatment with Zyprexa, a drug which is used for patients with schizophrenia or severe bipolar disorder and the fact that Dr Keith knew that this patient had ceased taking this medication, it is even more imperative that he sought a psychiatric opinion urgently for this man with a dual diagnosis of drug dependence and a major psychiatric disorder. Dr Keith mentioned in his notes that this patient always seemed paranoid and non-trusting. This may well have been a manifestation of his untreated paranoid schizophrenia. In the light of this background information, it is clear that Dr Keith was well out of his depth in treating this patient and should have sought acute care facilities nearby and possibly even scheduling this patient under the Mental Health Act rather than treating him with intravenous Valium, which at best, would have provided short-term sedation without addressing the patient's underlying problem. With regard to the acceptable standard of care by general practitioners in this situation is clear that to leave the patient who is drug dependent with ampoules for self-administration, after giving such a patient a 20mg bolus dose of diazepam in the presence of recent excessive heroin use is extremely hazardous especially with the clear previous diagnosis of a major psychiatric disorder. The risk of overdose in an agitated drug dependent patient as [Patient E] was at this time, is very high, particularly when he has access to ampoules for self-administration and is suffering from a diagnosed psychotic disorder. Such a patient should have been assessed in rooms and treated with oral medication in a controlled fashion with a daily pick-up of his medication at a community pharmacy. The treatment of choice in this situation is methadone together with a reinstatement of his antipsychotic medication Zyprexa. Dr Keith was a methadone prescriber, such co morbidity is common amongst this group of patients and he should have known this. If, as is noted in the record of interview, that this patient was suffering from extreme agitation requiring intravenous diazepam then he should have more appropriately been referred to an acute care psychiatric institution in Wagga and not treated by a GP in his home situation. Dr Keith has departed from the standard I have indicated above. His departure invites my disapproval and my degree of disapproval is severe. I believe that the departure from the standard would invite the disapproval of the general body of my colleagues". (Our emphasis). 30 The reference to Zyprexa is important. It contains olanzapine and it is used as an antipsychotic, mood stabiliser or major tranquiliser for significant psychiatric conditions. Quite apart from the question of administration of benzodiazepines, there arises the question of Dr Keith's failure to ascertain by whom Zyprexa had been prescribed, in what circumstances and for what purpose. He had met Patient E socially and from his observation thought Patient E was paranoid but he had no information and sought no information about Patient E's psychiatric condition. Dr Keith agrees that he should have made enquiries: T10.12-T11.19 (Day 2). Simple exploration may have revealed the true cause of Patient E's agitation. Once again this points to a lack of proper medical attention going beyond the issue of prescription of narcotics. Patient F 31 Patient F has had a history of drug use including amphetamine and heroin. She had for a time been on the methadone program, but she left the program. She had Hepatitis C, anxiety and depression. She also had a history of benzodiazepine dependence. Dr Seidler points out that Dr Keith prescribed benzodiazepines for "home detox", but that his records do not show how this was to be taken "nor is there any clinical history of how much heroin she is using, the frequency of injection, the amount of money she is spending on this drug or any other information that would be relevant to treating a patient with drug dependence. This information is mandatory for a doctor involved in the treatment of drug-using patients". 32 Dr Keith saw this patient intermittently throughout the period mentioned and on one occasion in September 2002 there is a notation for a home visit with the diagnosis of cold and the prescription of diazepam was again made with no indication of frequency or duration of treatment noted, nor a treatment plan for this patient. After further discussion as to, the paucity of notes and referring to the fact that the handbook provided to Dr Keith when he sat his examination to become a methadone prescriber would have made the need for full notes and attention to the sorts of matters which Dr Keith appears to have ignored. Dr Seidler also said: "the recorded history of heroin addiction and benzodiazepine dependence should have mitigated against the prescription of benzodiazepine tablets such as Antenex. There is no clear elucidation of a withdrawal regime in the clinical notes. This patient is at risk of overdose when taking intravenous street drugs together with prescribed benzodiazepines and an appropriate course of action for a doctor should have been a controlled prescription of benzodiazepines following a recognised detoxification schedule at a local community pharmacy, with regular follow-up and more importantly, a place for how this was to be achieved. Involvement with the local drug and alcohol service would have helped. The fact that this patient had been on and off methadone programs means that she is at higher risk of misadventure with prescribed medication. With regard to [Patient F], Dr Keith's departure from the standard invites my disapproval. My degree of disapproval in this case is moderate. I believe that the departure from the standard would invite the disapproval of the general body of my colleagues." (Our emphasis). 33 In early 2003, Dr Keith was prepared to and did send by fax a prescription to a pharmacy for Patient F. We set out the cross examination on this issue: Q. So on 3 February 2003 the notes reads, "Fax, can't get out here". Is that to represent she sent you a fax or you sent her a fax-- A. No, she would've - she almost certainly would have phoned and I would have faxed through a script to - to the pharmacy that she would've picked up at. It wasn't a common practice; we did it occasionally. We don't do it - we don't do - we don't do it any more. In the last 3 years we've insisted that all patients come out to our surgery. Q. You would receive a request from her for more Valium. In response you would fax a prescription to the pharmacy near where she was to enable her to collect the Valium. Is that the picture? A. Yes, on that occasion that is what happened but it was not a common occurrence at all. Q. Why couldn't she get to your surgery? A. My - my understanding is that neither she nor [Patient G] had a car and she lived out at Ashmont, which is 7 or 8 ks from my surgery. It's not an uncommon occurrence in my practice, that is that people have difficulties accessing - getting to the surgery. Q. You didn't undertake a home visit in view of her-- A. Not on that-- Q. --disability to get to your surgery? A. I didn't - I don't know what the reason was but I try to avoid home visits just for purpose of - of doing prescriptions. It's an abuse of the system. Q. Do you think sending scripts for Valium by fax to a pharmacy at a patient's request without any consultation or examination is appropriate? A. As I said, it is not a common occurrence and it's one that we try to avoid wherever possible. DEPUTY CHAIRPERSON Q. Yes, but would you answer the question, please? Was it appropriate? A. It is - it is largely inappropriate. As I said it was done occasionally, very occasionally only and now not at all. LYNCH Q. It wasn't an emergency to ensure this woman received a script for Valium, was it? A. I'd have to check on the record. I think it was - it was a month since she'd had the previous one, if I'm not mistaken. It was. Q. Do you suggest it was an emergency? A. No. I'm - I'm not saying that. I'm saying it was - it was a month since she had the last - she'd had the last script so in terms of timing, if she was to continue on and to continue to wean off it, which was clearly the intention, it was certainly time that she got another script for that purpose of reduction in dose. Q. Up until then there was no attempt to wean her off the Valium though, was there? A. There was - it would appear to be very little attempt that I had made at that time. It is an example of assistance provided to an addict to obtain narcotics, which Dr Keith initially attempts to justify, but for which there was no real justification. 34 A few weeks later and after the PSB interview, Dr Keith prescribed benzodiazepines to Patient F who claimed she was going to Mildura. Whilst Dr Keith's notes record that he was suspicious that Patient F was using other people's methadone he did not confront the patient about it: T50-51 (Day 2), but he says he believed her when she said she needed the full amount of the prescription as she was going to Mildura: T50.39. The continuing process of prescription and acceptance of what he was being told is the subject of cross examination: T51-56. 35 As with Patient B, even after the PSB interview Dr Keith continued to prescribe benzodiazepines to Patient F in circumstances which point to supply to a known addict (or a person who should have been recognised as such) on the basis of ready acceptance by Dr Keith of what he is told by the addict: see T55-56. Dr Keith agrees that he should have stopped prescribing and that he was "not strong enough or tough enough": T56.55. A further problem is that he directed Patient F to use some of Patient G's benzodiazepines: T57.21. Dr Keith describes what he did as probably "a fairly pathetic" attempt to address the issue of an extremely dysfunctional couple: T57.30. We do not think his conduct demonstrates insight or radical change in his conduct following the PSB interview. Patient G 36 Patient G had a history of heroin addiction but he had a long history back to 1997 of trying to seek benzodiazepines and home detoxification. He was on a methadone program from 8 March 2001 and was free of heroin for six to seven months in that period. On 10 March 2001 (two days after Patient G had commenced on the methadone program) Dr Keith recorded that Patient G was using 12 tablets of Valium a day. He prescribed 50 tablets for him and 50 were 'represcribed' four days later. Dr Seidler said: "This is prescribing well and above the therapeutic standard to a patient who is clearly known to have been addicted to IV drugs and benzodiazepines. It is not acceptable to prescribe on demand to such patients and he should have more properly been treated with a Valium and detox in a controlled setting, having to pick up his tablets on a daily basis under supervision of the local community pharmacy and seeing his GP every two days to make sure things were going smoothly. It would have been far better that this patient to have been prescribed methadone in the first place. This is the drug of choice for heroin dependent patients who often seek benzodiazepines as a substitute for heroin. From the clinical history it is clear that this patient was suffering acute withdrawal and the prescriptions of continuing large quantities of diazepam in the presence of opioids is of serious concern. There is an ever-present risk of overdose death or misadventure with such uncontrolled patients in a general practice setting. Clearly the care provided by Dr Keith to [Patient G] was below the acceptable standard. Dr Keith's departure from the standard invites my disapproval. My degree of disapproval is severe . I believe the departure of the standard would invite the disapproval of a general body of my colleagues." (Our emphasis). 37 Dr Keith prescribed Physeptone (an oral tablet of methadone) for Patient G, for a period of three months when he had no authority to do so, contrary to s.28 of the Poisons and Therapeutic Goods Act, and he continued to prescribe (one further occasion) even after a request for an authority had been rejected. 38 Dr Keith having had the PSB interview on 5 February 2003, saw Patient G again on 10 February. No doubt with the impact of the PSB meeting on his mind, Dr Keith wrote a note that he had the intention of weaning Patient G off the benzodiazepines over four to six weeks: T58.25. Dr Keith did prescribe benzodiazepines on 3 March and again on 9 July. Dr Keith explained why he had done so: Q. When he returned to see you on 9 July you [a]gain prescribed diazepam for him. Why did you do that? A. My note says clearly he again was claiming to go to Mildura. I explained re the previous investigation of overuse of diazepam so I was well aware that there were issues about the use of diazepam in this guy and that even in that context of wanting to go to Mildura was only prepared to give him 25 on that occasion. Q. Why did you prescribe the diazepam for him at all? A. Because he'd last used heroin three days ago in gaol and he was still withdrawing. Q. Why did you think that diazepam was suitable as a treatment for the withdrawing from heroin? A. It is the standard treatment for withdrawal symptoms from heroin. Had he been staying in Wagga he would have been one that we would have done the home detoxification program on and daily release from the pharmacy. Q. And would that have included the use of diazepam? A. That would have included the use of Diazepam, often in higher doses than that, six a day for two days, four, five or four a day for another two days and so on, a reduction over several days. Q. Is there any difference between the Antenex and the diazepam? A. No Antenex is a generic form of diazepam. and Dr Keith continued to prescribe benzodiazepines until 6 February 2004 when Dr Keith banned Patient G: T60.55-T61.9 (Day 2). He could not explain why he had prescribed benzodiazepines on 18 September 2003 even after he had told Patient G that the script on 12 September 2003 would be the last: see T61.30-33. Leaving aside the question of whether benzodiazepines should be prescribed to a person withdrawing from heroin where that person has had a history of use of benzodiazepines, and leaving aside the question of whether the assertion that Patient G was withdrawing was well founded, the prescription of benzodiazepine continued on well past a short-term basis as part of alleviating withdrawal symptoms. 39 That drug addicts thought that Dr Keith was the person to see to obtain narcotics easily is revealed by Dr Keith's discussion with Patient G two weeks before the hearing when Patient G brought another patient seeking Oxycontin to Dr Keith. Dr Keith said: "I totally refused and [Patient G] expressed great surprise that I wouldn't be yielding to her request and said you used to once and I smiled at him and said I don't do that anymore": T61.52-55. Dr Keith was insulted and annoyed that he had not been consulted by the area health services when they conducted a review of local prescribing and supply of methadone: T75.54 (Day 1), T72.20 (Day 2), he did not seem to appreciate that his approach and the complaints consequent upon that approach which complaints he recognises Area Health had received might have led to a justifiable reluctance to seek his views. In the PSB interview Dr Keith indicated he was aware that his practice was sometimes accused of being "too liberal in our use of Pethidine". 40 In his summary, Dr Seidler said: "In conclusion, there seems to be a pattern amongst these patients where Dr Keith had continued to prescribe benzodiazepines largely on demand to patients that he knew or should have known were dependent on both street drugs and prescribed medications. A number of these patients had co morbid psychiatric conditions for which the prescription of such benzodiazepines would have rendered them more difficult to control in a general practice setting. I have particular concerns regarding Dr Keith's treatment of these patients in the light of the fact that he was a registered methadone and pharmacotherapy prescriber and as such would have undergone a training course where the dangers of prescribing benzodiazepines to such patients was clearly spelled out. Dr Keith was not naïve to the wiles of such patients. He was not isolated in a small country town. He was working in a group practice in a large regional centre, where a drug and alcohol facility exists nearby and there is access to acute care psychiatry. Dr Keith should have treated these patient appropriately and kept better medical records". (Our emphasis). So far as local facilities are concerned this was the other matter that Dr Keith did not accept in Dr Seidler's report. His evidence was that there was very limited access to acute care psychiatry and significant restrictions in drug and alcohol services, especially in the period in question. Improvement 41 In paragraph 7 of his statement dated 29 June 2007, (Tab 1, Exhibit 1) Dr Keith, after admitting the particulars of the complaint says: "I contend that I should not now be suspended or deregistered. Since Mr Szcwarcberg interviewed me in February 2003 I have reflected long and hard about my conduct. In some cases I was probably out of my depth and I should not have tried to deal with those patients on my own. I have taken a number of precautions to ensure that I practice safe medicine. I detail these later in this statement. As a result, I believe there is no cause for continuing concern about my practice". 42 In paragraphs 62 to 67 of his statement, Dr Keith details the steps he has taken to avoid any repetition of the breaches of conduct the type with which the Tribunal is concerned, including: an improvement in note taking, education, and consideration of treatment plans. In paragraph 68 he summarises the specific changes he had made to his practice since the complaints were brought to his attention: "(1) I stopped using intravenous diazepam (in lieu of standard oral diazepam reduction regimens) completely. (2) Even before the visit from Mr Szwarcberg, with the advent of tramadol, I stopped using pethidine for [Patient C] and used it rarely in others (unless not tolerated). (3) I have ensured that appropriate authorities are sought for all Schedule 8 drugs. (4) I introduced improved treatment plans using Medical Director and computerised records. (5) I also introduced better management plans using Medical Director. (6) Instead of exceeding recommended doses of benzodiazepines, I moved to weaning patients on them to smaller doses and for shorter times more quickly and I reduced diazepam co-usage in methadone clients. (7) I endeavour to find non-pharmacological alternatives wherever possible. (8) I continue to review patients on benzodiazepines and am working on weaning them off the drugs altogether. I am mindful of the principle that benzodiazepines should be prescribed at the lowest possible dose to achieve the desired outcome for the shortest duration. (9) In October 2006 I introduced a formal doctor-patient-pharmacy contracts and sent copies to all pharmacies and other practices to substantially reduce the risk of doctor and/or pharmacy shopping. (10) I have made use of the Medicare Australia Prescription Shopping Information Service. (11) I conduct better reviews of patients on opiates and benzodiazepines. (12) I have also introduced systematic reviews of all management plans to ensure greater compliance with benzodiazepine prescribing guidelines." 43 Dr Keith gave up his position as a methadone prescriber in 2004. 44 Tendered in Dr Keith's case were the medical notes of Patient H, a patient who commenced as a patient in the practice in April 2007. The HCCC does not assert that there is any basis for complaint in the manner that this patient has been treated or in the notes of his treatment. 45 There is no doubt that Dr Keith has taken steps to improve his handling of drug dependent patients. His voluntary cessation of his role as a methadone prescriber is another step that reduces the prospect of further breaches. 46 There are a number of matters however that have led us to hold concerns about the extent of the 'transformation' and the level of insight. At the PSB interview, Dr Keith responded in a manner that indicated a considerable lack of insight at least in relation to some patients. After the PSB interview, he did appear outwardly at least to recognise that he needed to pay more attention to the wider drug issues and he certainly impressed Dr Tillett as having an appropriate change of approach. 47 The second matter is that we regard of considerable significance the date on which Dr Keith says he conducted an audit of all of the patients to whom he prescribes benzodiazepines. This did not occur until 2 May 2007 (T33), well after the HCCC complaint was lodged and four years after the PSB interview and notwithstanding his undertaking in February 2003 to conduct a review: see Exhibit A, Tab 5. He admitted the fact of the approaching Tribunal hearing was relevant to him commencing that process: T45 (Day 2). 48 The third related matter is that even in the period 2004-2006, Dr Keith was prescribing benzodiazepines in circumstances that are similar to those involved in his earlier behaviour – see T41-42 re Patient D and see [35] – [36] (Patients F and G), and [21] (Patient B), and at T33.1-25 (Day 2) he agreed that even now, he was still not following guidelines 49 The fourth matter is that the nature of the prescribing the subject of the complaints does not seem to us to be of a kind that stems from naivety or from some misguided approach to drug dependency, but rather from at best, a 'short-cut' mentality that saw Dr Keith indulging or even feeding patients' drug dependency. 50 Whilst he admitted the particulars and that his conduct amounted to professional misconduct he on occasions sought to persuade the Tribunal that although it was flawed he did have a legitimate reason for prescribing and that for example Dr Keith admitted in cross examination that he was effectively supplying on demand in some cases: T65-66 (Day 1): Q. What do you say to this suggestion that you were continuing to prescribe the benzodiazepine simply because the patients asked you to do so? A. With hindsight, I can see clearly that I was careless in a number of cases of what's called prescribing on demand and didn't take careful enough steps to seriously try to reduce. Q. Is that what was generally happening? The patients - the ones for whom you prescribed for heroin withdrawal - simply asked you to prescribe them with Valium and continued to ask you to prescribe it? A. In occasional cases that was so. Q. Which ones? A. We've already talked about some of them in the case of both [Patient F] and in [Patient G] - I think two that we've talked about so far that was the case but the problem there was that the withdrawals were happening quite frequently so-- Q. When you say that was the case, are you agreeing with the suggestion that I put to you that they were receiving the benzodiazepine simply because they asked for it? A. On some occasions, yes. That's quite correct. Q. Did you ever read the suggested guidelines in MIMS or any other pharmacopoeia for the suggested appropriate dosage or duration for prescribing Valium? A. I don't think there was a problem with the dosage in - in ongoing in most cases-- Q. No, can you answer my question please. Did you ever read the MIMS guidelines concerning the dosage and duration of prescribing the drug Valium? A. I can't remember specifically having read it at that time. I was aware - I was aware of it the problem was that I was not always following it. Q. Were you aware at the time that there was a suggested maximum duration for prescribing of benzodiazepines such as Valium? A. I wasn't as fully aware at that time as I should have been. Q. Were you aware at all that there was a suggested maximum duration for the prescribing of Valium? A. I think I was - I was aware but I was not - in these difficult cases whether ongoing, I was probably choosing to ignore that or not give it as much weight as I should have. And, he admitted to a very lax approach to patients seeking narcotics at T45: Q. Just on a general basis, I ask this question: Do you think you were an easy touch in relation to these patient requests for medication-- A. In hindsight, yes-- Q. --prior to February 2003? A. --I was, and that's one of the things I've clearly acknowledged, that I was not tough enough, and was a soft touch, to use your phrase, yes. HIS HONOUR Q. But back then, did you not realise you were an easy touch back then? A. I did realise that I was an easy touch, and tried, and tried to my level best to be aware of it. But I only became aware of it much, substantially much, much later. And I acknowledge that. LYNCH Q. You were well aware of the manipulative behaviour on the part of narcotics users to get medication that they wanted, prior to 2003? A. I was well aware of that, and tried to the best of my ability then, to address the issues. Just in retrospect, my efforts were not, were not as good as they should have been. Q. Well, is this the position, that you simply believed everybody or gave them the benefit of the doubt even if you had doubts about their credibility when they sought medication? A. In a number of cases, I gave them the benefit of the doubt. At T78-T81 (Day 2) Dr Keith admitted that he knew in the cases of Patients B, D, E, F and G that the patients were addicted to benzodiazepines. He did not admit this in respect to Patients A and C (in her case Pethidine). In re-examination, he said that his admission in relation to Patient B was a mistake. We do not accept his assertion that his admission was a mistake and we are persuaded that he knew that both Patient A and Patient C were also addicts. 51 The lack of justification for prescription or administration of narcotics either at all or for extensive periods in some cases was demonstrated comprehensively but the extent to which Dr Keith was willing to indulge the addiction of his patients was extreme as can be seen in the case of Patients B, C and E. To Patient B he prescribed diazepam in circumstances that he outlined at T38.6, T40.45 and which border on the bizarre, including him meeting Patient E in the park and approaching Patient B on the street and prescribing diazepam because he says Patient B was withdrawing from heroin when that was not supported objectively. Some years later in May 2006, Dr Keith prescribed oxazepam, a shorter acting benzodiazepine, he says because Patient B was suffering depression, and whilst he was on the methadone program at 60 mgs a day. Dr Keith's notes record that Patient B: "feels he would like to continue Serapax which [he] has used off the street". Dr Keith agreed that as Patient B said he suffered anxiety and depression and because Patient B said he was using irregular oxazepam "it was better for him to be on controlled Serapax for a period of time rather than intermittent Serapax off the street": T42.5-10 (Day 2). The cross examination continues at T42.34- T44.26 (Day 2) and points once again to a most unsatisfactory approach 3 years after the PSB interview and includes this exchange: Q. You developed his dependence [Patient B] by legitimately prescribing the drug for him which previously he was obtaining illicitly. A. That is a correct interpretation" And after questions about the continued prescribing of Schedule 8 drugs at T45.16-33: Q. You didn't learn - I'm suggesting, Dr Keith, you didn't learn any lessons in relation to the responsible prescribing of benzodiazepines after your contact with Mr Schwarzberg in February 2003. What do you say to that? A. That is partly true and - but certainly after May, when I indicated to you before, I - these matters came much more clearly to my consciousness. It was then that I made the much more deliberate efforts to be more incisive in my reducing and [Patient B] was one of the ones that I decisively reduced and succeeded in getting off Q. Did it have anything to do with the proximity of this Tribunal hearing? A. I've already indicated to the Tribunal that the - my preparation for the Tribunal and being aware of all the issues was as very strong incentive to me to be more responsible than what I had been before The Principles 52 There was a large measure of agreement between the parties as to the approach to be taken where conduct constituting professional misconduct has been established. We shall summarise these: (a) The fact that the conduct in question is by definition sufficiently serious as to justify suspension or removal does not mean that the practitioner must be removed: HCCC v Karalasingham [2007] NSWCA267 [67] (b) The question of fitness to practice is to be determined as at the date of the hearing not as at the date of the conduct: A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253 [21]; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320. Although of course the nature and extent of the conduct in question is a significant aspect of the fitness to practise. (c) An order that a medical practitioner be removed from the register carries with it the implication that the practitioner is probably permanently unfit to practise: Ex parte Lenehan (1948) 77 CLR 403 at 422; Prothonotary v Ritchard (BC8701242, NSWCA 31 July 1987, per McHugh JA); NSW Bar Association v Maddocks (NSWCA 23 August 1998). (d) If the Court is not persuaded that the practitioner is permanently unfit to practise then the proper order will usually be one of suspension or fine instead of removal per McHugh JA in Ritchard. (e) In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v HCCC (2002) NSWCA 111 [55] (f) The jurisdiction of the Tribunal is protected rather than punitive, that is, protective of the public and the profession: see HCCC v Litchfield (1997) 41 NSWLR 630, at 637. (g) No order should be made which has more serious consequences for the practitioner that is reasonably necessary to promote the protective purpose but that is not to say that only the aim of deterring the particular practitioner is to be considered. As Basten JA remarked in NSW Bar Association v Meakes [2006] NSWCA 340 dealing with whether or not a fine should be imposed on a barrister for overcharging: "There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services." 53 There was some disagreement as to the question of the onus of proof. Mr Lynch accepted that the HCCC bears the onus of establishing that the practitioner has been guilty of professional misconduct and that orders are appropriate. Dr Keith admits all of the particulars and admits that the particulars constitute professional misconduct but asserts that he ought no be suspended or removed particularly if conditions are placed on his right to practise. The question which arose was whether, given the admissions made, Dr Keith bears an evidentiary or practical onus. The question of legal burden of proof, evidentiary burden and shifting burden is discussed in detail in Cross on Evidence 7005-7230 and in Parkes v Crittenden (1965) 114 CLR 164 at 167-8. Applying the principles outlined where a practitioner has been guilty of professional misconduct his failure to adduce any evidence of any change of practice, contrition and education is likely to lead to a conclusion that he should be deregistered. If he does adduce evidence that he has taken steps to deal with the problems that led to his conduct, the HCCC, we think, has the onus of establishing that on all the evidence that he is not a fit and proper person to be practising medicine and that for the protection of the public he should be suspended or removed. 54 The misconduct with which the Tribunal is concerned is of a very serious kind. Dr Keith by his actions became a supplier of drugs of addiction by prescribing and administering benzodiazepines and Pethidine to patients who, on objective analysis, had (or would likely) become addicted to or abused those drugs. His assertion that he did not in some cases appreciate that they were addicted, if accepted, points to a significant lack of judgment on his part in not recognising that objective fact. We have difficulty in accepting his assertion that he did not appreciate that they were addicted, particularly given his involvement in the methadone program. 55 His prescription and administration of those drugs over an extensive period without critical analysis of the need for those patients to be weaned off their addiction, and without implementation of proper management of their addiction and co-morbid disorders precluded for a lengthy period any proper attempt to end dependency. The extent of prescription and administration was such as to promote addiction as opposed to ending it, and indeed so as to exacerbate biological and psychiatric morbidity. He left with Patient E ampoules and a cannula for self-administration and saw him in the park after Patient E's partner had criticised Dr Keith for administering benzodiazepines intravenously to Patient E. Dr Keith was permitting Patient C to retain ampoules of Pethidine over a prolonged period, a drug with a very strong addictive potential, and was continuously given Pethidine notwithstanding obvious signs and the advice of a specialist that she was an addict. 56 In respect of the prescription and administration of benzodiazepines on Dr Keith's evidence in respect of some patients he assessed them to be suffering withdrawal from heroin – on several occasions where his notes offered no support for such a conclusion. We accept that up until 2002 it was accepted that benzodiazepines were available as drugs that could be used, with or without others, to deal with withdrawal symptoms following cessation of opiate use but only for a short period. What Dr Keith was doing by his attempts to palliate the unpleasant but benign symptoms of opiate withdrawal was promoting addiction to Benzodiazepines in place of an addiction to opiates. 57 A further concern is that a number of the patients for whom he prescribed narcotic drugs had other medical problems to which he seemed to devote little or no thought. Patient C was on medication which suggested hypertension or other cardiovascular diseases which at times of poor control may have precipitated her presentation with vascular headaches, with likely high blood pressure but he nevertheless took her blood pressure only twice in two years. 58 In the case of Patient E Dr Keith was aware that the patient had been prescribed olanzapine (Zyprexa) by another practitioner but he made no enquiries as to who had prescribed it, when, for what purpose and in what circumstances. Olanzapine is used to deal with psychosis and other significant psychiatric conditions. Dr Keith prescribed 50 benzodiazepine tablets (Valium/Antenex) to Patient E who ingested all or most of the tablets at once and had to be admitted to hospital. This was after Dr Keith had become aware that Patient E had claimed he had lost 50 tablets: T6 (Day 2) and on 7 November had told him he had consumed all 50 tablets: T5.25 (Day 2). 59 A further feature of Dr Keith's breaches is that despite the existence of guidelines provided by appropriate health authorities as to the use of the prescription narcotics he does not appear to adequately have paid regard to their terms. He largely ignored the advice provided to him by Dr Martin Jude in respect of Patient C. There are indications that others in the practice could see that Patient C was addicted or possibly addicted to Pethidine and was using a claim of migraine to obtain her drug of addiction. Dr Goddard took note of Dr Jude's report but Dr Keith appears to have ignored it insofar as it pointed to Patient C's addiction. We are not satisfied he took any steps, before Pethidine was replaced by tramadol, to end Patient C's dependency, and it appears that by then Patient C had come under Dr Driver's care: T28.35. 60 The further feature is that even after Dr Keith was interviewed by Mr Szcwarcberg of the PSB in February 2003, he has continued at least up until May 2007 to inappropriately prescribe benzodiazepines to some addicted persons. In May 2007 he conducted what he describes as an audit of his drug patients and made an effort to do what he should have done when first approached by the PSB but it would appear that the imminence of this hearing has played a significant part in the commencement of that process: T45 (Day 2). We do not think this demonstrates that the PSB interview and event of 2003 had sufficient impact upon Dr Keith. 61 The final element is that Dr Keith's notes are scant in detail. The purpose of a doctor's notes is to enable any doctor reviewing the patient, including the principal treating doctor who has written the note, to see the medical history and treatment up to that time. Dr Keith agrees that his note taking was "woefully" inadequate and in part that was utilised by him to assert that he had reasons for doing what he did which were not recorded. Dr Keith sought to say that given his poor notes and the passage of time he was at a disadvantage in explaining his conduct but we are of the view that in no case where Pethidine or a benzodiazepine was prescribed was there any legitimate reason that was not noted down in the notes. 62 As we have noted Dr Keith accepts that the particulars support a finding of professional misconduct – that is, unprofessional conduct that would justify suspension or deregistration. We think his conduct is correctly so characterised and in the light of the matters to which we have referred, we have given serious thought to his removal from the register. We take into account however the following matters in coming to the conclusion that he should not be suspended or deregistered: (1) he has been in practice since 1981 in Wagga Wagga and until now has not been the subject of established unprofessional conduct; (2) he has contributed to the provision of medical services in Wagga Wagga (3) He has the support of a number of colleagues although we place less weight on the support from a current associate of the practice, Dr Burgess, because he has a direct interest in the outcome (4) he has admitted that what he did constitutes misconduct requires a significant change in practice and he has displayed a degree of remorse (5) the Tribunal accepts that drug addicted patients are often extremely difficult to treat and options are particularly limited in his region We are not persuaded, having regard to these matters, that Dr Keith is now unfit to practise medicine even with appropriate conditions. 63 In coming to the view we have had regard to the principles to which we earlier made reference. We think that the public is adequately protected by removing Dr Keith's right to prescribe Schedule 4 and Schedule 8 drugs, and with the imposition of some further requirements. 64 The HCCC sought the imposition of a fine in the order of mid to high range – the maximum available amount that can be imposed is presently $27,500: see s.62 of the Act. 65 The Tribunal having determined that Dr Keith should not be deregistered thinks that it should mark its strong disapproval of Dr Keith's past conduct and as an indication to practitioners to emphasise the importance of responsible prescribing of drugs of addiction by imposing a fine and not just a reprimand. It has been said in the Court of Appeal in Spicer v NSW Medical Board (NSWCA 19 February 1981 unreported) that: "Strict adherence to the statutory requirements relating to the use of drugs of addiction is required by medical practitioners. 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 which is reckless and which shows a disregard for the law, it cannot be said he is fit at such time to be a medical practitioner". 66 Only two of the particulars relate to breach of the legislation but when coupled with the significant matters to which we have referred, we `view a fine of $20,000 as appropriate in all the circumstances. 67 The HCCC, without thereby conceding that deregistration was inappropriate, handed up a set of conditions that it was submitted would be appropriate for the Tribunal to impose should deregistration not be ordered which conditions we were informed had been the subject of input by the NSW Medical Board. Ms Katzmann submitted that the requirement for a mentor, supervision and audit were cumulatively somewhat onerous (which submission we accept) but did not otherwise cavil with the appropriateness of conditions. Indeed, it was submitted that if Dr Keith's right to prescribe was removed then the Tribunal could be confident that the public were not at risk by permitting Dr Keith to practise with conditions. We have, subject to removing the reference to a mentor, and adding a requirement that Dr Keith not be involved in the training of others in relation to the management of drug dependent patients, drawn from those conditions. 68 We think that Dr Keith should not be permitted to prescribe Schedule 4 and Schedule 8 drugs, and that this should only be permitted after two years and after he has met the conditions to be imposed and demonstrated to the satisfaction of the Medical Board that his right to prescribe ought be restored 69 We set out the conditions that we think should be imposed: Education 1.1(i) Dr Keith is ordered to complete a relevant course(s) of education or training in the effects of and the prescribing guidelines in relation to Schedule 4, Schedule 4D and Schedule 8 drugs, and (ii) Dr Keith is ordered to complete a relevant course(s) of education or training in relation to record keeping approved by the NSW Medical Board ("the Board") within a period of time specified by the Board. Dr Keith is to obtain the Board's approval for the course within 3 months of the date of the Tribunal's order. (iii) Within two weeks of completing the course, Dr Keith is to provide evidence to the Board that he has satisfactorily completed the course. Counselling 1.2 Dr Keith is to attend on a psychiatrist for the purpose of counselling in relation to prescribing issues and dealing with addicted patients demands for a period of 12 months from the date of the first consultation (which is to be within 3 months of the date of this decision). Dr Keith is to notify the Board of the name and professional address of a psychiatrist who has agreed to act in that capacity on the following bases: (iv) The psychiatrist must provide a curriculum vitae to, and be approved by, the NSW Medical Board, (v) Dr Keith is to provide the approved counsellor with a copy of the Tribunal's decision, (vi) Dr Keith is to authorise the approved counsellor to provide the Board: (1) with a report of Dr Keith 's progress in approved format on a 3 monthly basis; and (2) notify the Board immediately if there are any concerns or issues in relation to Dr Keith's compliance with any condition or if the counselling relationship ceases. (3) In the event that the approved counsellor is no longer willing or able to continue to provide counselling, Dr Keith is to nominate another psychiatrist for approval by the NSW Medical Board within 28 days of the cessation of the original counselling relationship. (4) All expenses associated with the counselling as set out in this condition are to be met by Dr Keith. Supervision 1.3 Dr Keith is to nominate a supervisor within six weeks from today to be approved by the NSW Medical Board to monitor and review his clinical practice in accordance with Level 3 supervision of the NSW Medical Board's Guidelines. The supervisor is to be provided with a copy of the NSW Medical Board's Guidelines for Supervision, and a copy of this decision. The cost of the supervision is to be borne by Dr Keith. Dr Keith and the supervisor are to: (i) Meet on a monthly basis for at least 2 hours; (ii) Meeting must address prescribing practices, including the effects of drugs prescribed. (iii) At each meeting the supervisor is required to complete a record of matters discussed at the meeting in a form approved by the Board; (iv) The supervisor is required to forward to the NSW Medical Board initially on a 6 monthly basis a report in a format approved by the NSW Medical Board (v) The supervisor is required to notify the NSW Medical Board immediately if there are any concerns or issues in relation to Dr Keith's practice of medicine or if the supervision relationship ceases. Dr Keith is to authorise the supervisor to provide such information to the Board. Auditing 1.4 That Dr Keith is to submit to a random audit of his/her medical records by a person or persons nominated by the Board to monitor compliance with Schedule 2 of the Medical Practice Regulation 2003 within 6 months of today's date and subsequently as required by the Board. Dr Keith is to authorise the said person or persons to prepare for the Board a report of his/her or their findings. Dr Keith is to meet all costs associated with the audits and any subsequent reports. Prescriptions 1.5 That for a period of at least 2 years from the date hereof, Dr Keith is not to prescribe: a) Benzodiazepines or b) Schedule 8 drugs 1.6 That Dr Keith must only work in a group practice (defined as at least three practitioners) in which all practice members are aware of the conditions on his registration and may only consult patients when there is another registered medical practitioner also on site. 1.7 That Dr Keith not supervise or train other medical practitioners employed at his group practice with respect to the management of drug dependent patients, unless with the approval of the Board and, in any event, not for a period of 12 months from the date of this decision. 1.8 That Dr Keith is to seek NSW Medical Board approval prior to changing the nature or place of his practice. 1.9 That Dr Keith consents to the exchange of information between Medicare Australia and the NSW Medical Board. Other 2. That the conditions may be varied, amended or reviewed by the NSW Medical Board 3 That Dr Keith pay the costs of the proceedings. 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.