Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 Hearing dates: 7 - 11 March 2011 Decision date: 15 April 2011 Before: Staff J; Dr S Toh; Dr M Higgins; Assoc Prof A Glass Decision: 1. The Tribunal finds particulars 4, 5, 6, 7, 8, 9 (excluding the failure to have a management plan), 10 (excluding the failure to have a management plan), 11, 12(c), 13, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are proved. 2. The Tribunal finds that the practitioner's particularised conduct as proved in respect of particulars referred to in Order 1, with the exception of particulars 6, 11, 18, 24 and 28 amounted to professional misconduct. 3. The Tribunal finds that the practitioner's failure to make proper records (particulars 6, 11, 18, 24 and 28) amounted to unsatisfactory professional conduct. 4. The Tribunal reprimands Dr Gorondy-Novak. 5. Pursuant to s 61(1)(c) of the Medical Practice Act 1992, Dr Gorondy-Novak's registration is subject to conditions. Catchwords: General practitioner - inappropriate prescribing of benzodiazepines, diazepam, oxycodone, ms contin, pethidine and codeine phosphate to drug dependent patients where the medical practitioner knew or ought reasonably to have known of their drug dependence - continuing to prescribe to known "doctor shoppers" in quantities which exceeded therapeutic guidelines - continuing to prescribe when practitioner knew or ought to have known another general practitioner was also prescribing - continuing to prescribe without specialist assessment - failure to recognise repeated drug seeking behaviour - prescribing without holding or applying for an authority under s 28 of the Poisons and Therapeutic Goods Act 1966 - failure to make and/or retain proper records of treatment of patients contrary to cl 5 and cl 6 of the Medical Practice Regulation 2003 - professional misconduct - amended complaint - procedural fairness - principles - penalty - rights to prescribe Schedule 4 and Schedule 8 drugs removed - practitioner reprimanded - other conditions imposed Legislation Cited: Interpretation Act 1987 Medical Practice Act 1992 Medical Practice Regulation 2003 Poisons and Therapeutic Goods Act 1966 Poisons and Therapeutic Goods Regulation 2002 Cases Cited: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 Bannister v Walton (1993) 30 NSWLR 699 Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Briginshaw v Briginshaw (1938) 60 CLR 336 Buttsworth v Walton (Court of Appeal, 19 December 1991, unreported) Childs v Walton (Court of Appeal, 13 November 1990, unreported) Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 Dr Clive Anthony Wolfe (18 November 1999) Health Care Complaints Commission v Ian Robert Hutchins (Matter No 40013 of 2008, 31 July 2009) Ex Parte Lenehan [1948] HCA 45 Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 86; (2010) 245 FLR 242 Gad v Health Care Complaints Commission [2002] NSWCA 111 HCCC v Dr Christopher Roberts [2007] NSWMT 15 HCCC v Dr Kazmierczak [2007] NSWMT 14 HCCC v Kalokerinos [2007] NSWMT 17 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Ameisen (28 January 2009) Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 In Re Dr Gregory Wilcox [2007] NSWMT 3 In Re Dr Peter Keith [2007] NSWMT 12 Kalil v Bray [1977] 1 NSWLR 256 Katherine Louise Carseldine and the Medical Practitioners Act (19 March 1991) Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qidwai v Brown [1984] 1 NSWLR 100 Re Dr Barry Cross and the Medical Practice Act (2 February 2006) Re Dr Parajuli [2010] NSWMT 3 Re Dr Susan Catchlove and the Medical Practice Act (8 February 2006) Rejfek v McElroy (1965) 112 CLR 517 Re the Medical Practice Act 1992 and Dr Ghalib Mohammad Talib Hamad [2004] NSWMT 4 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Spicer v New South Wales Medical Board and Ors (Court of Appeal, 19 February 1981, unreported) The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Kinga Maria Gorondy-Novak (Respondent) Representation: Ms S McNaughton of counsel (Complainant) Mr M Windsor SC (Respondent) Health Care Complaints Commission (Complainant) Avant Insurance Pty Ltd (Respondent) File Number(s): 40016 of 2010 Publication restriction: Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients. JUDGMENT 1The Health Care Complaints Commission ("HCCC") alleges in an amended complaint, that Dr Kinga Maria Gorondy-Novak ("the respondent"), a medical practitioner, is guilty of "unsatisfactory professional conduct" within the meaning of s 36 of the Medical Practice Act 1992 (now repealed) ( "Medical Practice Act ") and/or "professional misconduct" within the meaning of s 37 of the Medical Practice Act in that she has demonstrated that the knowledge, skill or judgment possessed, or care exercised by her 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 also contravened the Medical Practice Regulation 2003 ("Medical Practice Regulation"). 2The particulars of the complaint refer to five patients of the respondent, who will be referred to as "Patient A", "Patient B", "Patient C", "Patient D" and "Patient E". 3In summary, it is alleged that the respondent failed to refer Patient A, a known "doctor shopper" and benzodiazepine abuser, for specialist assessment and management of his addiction to Diazepam. Patient A was also prescribed Diazepam tablets and Codeine Phosphate in quantities which exceeded the Therapeutic Guidelines. Similar allegations of over prescribing and failure to refer to a specialist and have a management plan are alleged in respect of each of the other patients. In respect of Patient E, it is also alleged that the respondent prescribed Pethidine without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966. 4In addition, it is alleged in respect of each of the patients that the respondent failed to make and/or retain proper records contrary to cl 5 and cl 6 of the Medical Practice Regulation. 5The particulars of the complaint were: At all relevant times, the practitioner conducted practice as a general practitioner: Patient A 1. Between 3 January 2007 and 12 March 2007 the practitioner failed to refer Patient A, a known "doctor shopper" and benzodiazepine abuser, for specialist assessment and management of his addiction to diazepam; 2. Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe diazepam tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan; 3. Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan; 4. Between 3 January 2007 and 12 November 2007, the practitioner prescribed diazepam tablets in quantities which exceeded therapeutic guidelines contrary to Clause 79 of the Poisons and Therapeutic Goods Regulation 2002; 5. Between 27 March 2007 and 23 October 2007, the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 mg tablets for a period the length of which exceeded therapeutic guidelines; and 6. Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient A contrary to Clauses 5 & 6 of the Medical Practice Regulation 2003. Patient B 7.Between 3 January 2006 and 12 November 2007 the practitioner prescribed diazepam tablets to Patient B in excess of therapeutic guidelines when she knew or ought to have known that Dr Ktenas, another general practitioner who used the same medical records, was also prescribing diazepam tablets for Patient B during that period; 8.Between 3 January 2006 and 12 November 2007 the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 mg tables in to Patient B in excess of therapeutic guidelines when she knew or ought to have known that Dr Ktenas, another general practitioner who used the same medical records, was also prescribing codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B during that period. 9.Between 3 January 2006 and 12 November 2007 the practitioner continued to prescribe diazepam for Patient B without specialist assessment and a documented management plan; 10.Between 3 January 2006 and 12 November 2007 the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B without specialist assessment and a documented management plan; 11.Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient B contrary to Clause 5 & 6 of the Medical Practice Regulation 2003. Patient C 12.At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C: (a) in a quantity, and/or for a purpose and/or for a duration, that did not accord with the recognised therapeutic standard of what was expected in the circumstances; (b) without specialist advice and a documented management plan; (c) without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002; (d) in the form of 80 mg tablets, concurrently prescribing also 20 mg tablets and 40 mg tablets when Patient C failed to attend pain clinic appointments; (e) in the form of 80 mg tablets, concurrently prescribing also 20 mg tables and 40 mg tables without any treatment plan documented in the records; 13. On 12 December 2006 and/or, 7 February 2007, 4 April 2007, 18 April 2007, 2 June 2007, 3 July 2007, 23 July 2007, 20 September 2007, 13 October 2007, 15 October 2007 and 14 November 2007 the practitioner agreed to provide replacement prescriptions for oxycodone in circumstances when she should have not so agreed. 14. On 28 March 2007 and/or around 12 December 2007, the practitioner used an incorrect patient name and date of birth when applying to the PSB for an authority to prescribe drugs of addiction; 15. On 7 February and/or, 5 March, 27 March, 4 April, 5 April, 18 April, 23 April, 30 April, 13 June, 25 June, 3 July, 4 July, 23 July and 27 July 2007 prescribed 80 mg oxcontin SR tablets to Patient C using an incorrect patient name, "Patient X". 16. On 7 February and/or, 5 March, 27 March, 4 April, 5 April, 18 April, 23 April, 30 April, 13 June, 25 June, 3 July, 23 July and 27 July 2007 the practitioner claimed Medicare benefits for consultations on those dates with Patient C when she had written prescriptions on those dates for Patient X. 17. The practitioner continued to prescribe oxycodone tablets for Patient C after she had been made aware on or around 4 July 2007 that Patient C was a "doctor shopper". 18. Between 8 November 2006 and 5 January 2008, the practitioner failed to make and/or retain proper records of her treatment of Patient C contrary to Clause 5 and 6 of the Medical Practice Regulation 2003. Patient D 19. [Not pursued]. 20. The practitioner continued to prescribe oxycodone and diazepam 5 mg tablets to Patient D, a known "doctor shopper", when on 16 November 2006 a notation in the medical records indicates that she was dubious about the excuses being put forward in order to get further supplies of medication; 21. The practitioner prescribed MS contin tablets on the following dates in 2001: 28 February and/or, 16 May, 1 June, 2 July, 9 July, 30 July, 3 August, 31 August, 12 September and 14 September, for a known 'doctor shopper' without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966; 22. The practitioner prescribed oxycodone tablets on 3 April and on or, 26 June, 3 July, 9 August, 4 September, 13 October, 4 November, 20 November 2006, and 5 January 2007, for a known 'doctor shopper', without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966; 23. The practitioner prescribed drugs of addiction on 23 and on or, 30 June, 8 September and 26 October 2007 without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002. 24. Between mid-2001 and 3 January 2008, the practitioner failed generally to make and/or retain proper records of her treatment of Patient D contrary to Clause 5 & 6 of the Medical Practice Regulation 2003, given the nature of the drugs being prescribed, the duration of prescribing and the problems being treated that was primarily drug abuse. Patient E 25. The practitioner prescribed fifty-five prescriptions for pethidine in the period 4 January to 24 December 2007 without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966; 26. Between 4 January and 24 December 2007, the practitioner prescribed fifty-five prescriptions for pethidine, each ordering twenty ampoules of pethidine 100 mg at a time, despite Patient E's clinical history and notwithstanding the advice from the Prince of Wales Pain Clinic on 24 May 2007 that they did not support continued pethidine use; 27. The practitioner prescribed drugs of addiction in the period 4 January to 24 December 2007 without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002; 28. In the period 4 January to 24 December 2007 the practitioner failed generally to make and/or retain proper records of her treatment of Patient E contrary to Clause 5 & 6 of the Medical Practice Regulation 2003, given the nature of the drugs being prescribed, the duration of prescribing and the problems being treated that was primarily drug abuse. 6The respondent made a number of admissions in respect of her conduct, though she did not concede in terms that any of her conduct constituted unsatisfactory professional conduct under the Medical Practice Act , or professional misconduct. 7Ms S McNaughton of counsel appeared for the HCCC. Mr M Windsor SC appeared for the respondent. Professional misconduct 8For the purposes of the Medical Practice Act , "unsatisfactory professional conduct" of a registered medical practitioner is defined as follows: 36 Meaning of "unsatisfactory professional conduct" (1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: (a) Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine. 9For the purposes of the Medical Practice Act , "professional misconduct" of a registered medical practitioner is defined as follows: 37 Meaning of "professional misconduct" (a) unsatisfactory professional conduct, or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct, of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register. Standard of proof 10The standard of proof to be applied by the Tribunal is that referred to in Rejfek v McElroy (1965) 112 CLR 517 at 521: No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge. 11That standard was applied in Bannister v Walton (1993) 30 NSWLR 699 where it was held that the requirement is that the Tribunal be "comfortably satisfied on the balance of probabilities". 12The Tribunal must have regard to the gravity and importance of the matters which it is deciding in accordance with the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 - 363. At 361 - 362 Sir Owen Dixon stated: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Principles 13This jurisdiction is exercised for the protection of the public and the medical profession. It is protective rather than punitive. Deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify it: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton (Court of Appeal, 13 November 1990, unreported). 14It is important to bear in mind that the question of fitness to practice must be determined at the date of hearing: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [21]). In determining the question of fitness, the whole of the conduct of the practitioner should be considered: Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55]. The respondent 15The respondent was born in 1945 in Griffin, Austria. In 1947 she travelled with her mother to Hungary where she remained until 1956, when she and her mother escaped that country during the Revolution and sought refuge in Austria. She subsequently migrated with her mother to Australia, where she enrolled in primary school. 16In 1962, the respondent completed her Leaving Certificate. In 1969, she graduated with a Bachelor of Medicine, Bachelor of Surgery from the University of Sydney. She worked as an Intern at the Prince of Wales Hospital and Prince Henry Hospital in 1969 and 1970. 17Since 1971, she has worked in general practices in Kingsford, Randwick, Malabar and Maroubra. 18The respondent is married and her mother lives with the respondent and her husband. Her four adult children no longer live at home. 19In 1997, the respondent obtained a Masters of Medicine in Gerontology from the University of New South Wales. From 1999, the respondent provided general practitioner services each week to persons at Jarrah House, a care institution that looks after women and children exclusively. The Jarrah House facility is an outreach of Prince of Wales Hospital, used for women's voluntary short term drug and alcohol detoxification. Stage 1 of the detoxification program is for three weeks and later rehabilitation Stage 2, for six weeks. Her work with Jarrah House included admission of clients, their examination, assessment and recommendation for detoxification, plus other general practitioner assistance with health needs of the women and their children. Children are able to be admitted to Jarrah House with their mothers. 20As a result of working at Jarrah House, the respondent was asked to complete a Methadone and Buprenorphine Prescriber's Course to facilitate Buprenorphine detoxification of clients. She was accredited as a prescriber at the end of 2001. In 2008, she completed an Advanced Prescriber's Course given by the Australasian Chapter of Addictive Medicine within the Royal Australian College of Physicians. 21In addition, the respondent completed further training for mental health assessment and referral in about 2005. She stated that she continues to update her knowledge and skills in this area, both with the Black Dog Institute and with the Brain and Mind Institute at Sydney University. She has joined a small learning group focused on mental health issues based at the Cooper Street Clinic. 22In 2010, the respondent attended seminars updating her education in topics ranging from mental health, chronic disease management, palliative care, diabetes, motivation interviewing in general practice and pain management opioid therapy in chronic pain. 23Since the complaint by the HCCC, the respondent has been receiving mentoring, first from Dr James Bell, the Director of the Langton Centre (Drug and Alcohol Service). The Langton Centre provides drug and alcohol assistance in respect of addiction. She then received mentoring with Dr Lucy Harvey-Dodds, a Drug and Alcohol Specialist whom she continues to see on a regular basis. 24From 1997, the respondent worked at the Waratah Medical Centre on a sessional basis. She was paid per hour worked. The Waratah Medical Centre is owned by Dr Ktenas. Only the respondent and Dr Ktenas were involved in the practice. When the respondent worked at this practice, Dr Ktenas was often not present. She worked around 23 hours per week. The Centre bulk bills patients ranging across the spectrum. The respondent's practice while working at the Waratah Medical Centre was family orientated, with an approximate 60/40 per cent ratio of female to male patients. The majority of patients are aged between 18 and 59. The percentage of Methadone patients was about 4 per cent of her overall practice of between 600 to 1000 patients per year. The Methadone patients and the patients included in the complaint represented a small cohort of drug-dependent or drug-using/seeking patients. 25The respondent is a member of the South Eastern Sydney Division of general practice. She is also a member of the Royal Australasian College of General Practitioners and the Australian Medical Association. 26The respondent ceased working at the Waratah Medical Centre on Christmas Eve last year. She commenced working at the Maroubra Medical Centre in January 2011. This Centre employs approximately five full time doctors and nine part time. There is also a practice nurse engaged by the practice who is available to do testing and assist with health assessments, immunisations, checking blood pressure, doing spirometry and other work usually carried out by a nurse. There is also a practice manager at the Maroubra Medical Centre who organises the day to day running of the practice and ensures that doctors are up to date in terms of Government requirements with respect to medical practice. The practice uses a software package when consulting patients known as the "Medical Director". The respondent works part time at the practice as follows: Monday - 9.00am to 2.00pm; Wednesday - 12.00noon to 6.00pm; Friday - 9.00am to 3.00pm; Saturday - 9.00am to 12.00noon, which amounts to 20 hours per week. The respondent also does home visits and attends nursing homes in the south eastern Sydney region. The majority of the doctors at the practice bulk bill. At this practice, the respondent sees a mixture of men, women and children. The number of female patients is much higher than she saw at the Waratah practice. Also the number of aged patients is higher, being 60 plus. The respondent has a particular interest in these patients, having completed a Gerontology course which dealt with aged care. 27The respondent said that at the Maroubra Medical Centre, she has the opportunity to liaise with other general practitioners within the practice. 28Between 1999 and 2006, the respondent attended as a representative of the South Eastern Sydney Division of general practice at monthly meetings at the Prince of Wales Hospital. A primary purpose of those meetings was to maintain liaison between providers of public health services in south and eastern Sydney. She continues to be the general practitioner representative for the Division for an Area Health Service Advisory Group, as well as the representative of the Division on the Consumer Research Committee of the Dementia Collaborative of the University of New South Wales. She also represents the Division in the Dementia Planning Committee at 2010 - 2015 for Randwick and Botany. 29In the respondent's written statement, she stated that the drug-dependent patients she was seeing, fell into the following main categories: * those addicted clients who are in a supervised detoxification centre such as in Jarrah House where there are procedures and protocols in place. I worked one session a week at this facility for 10 years. * methadone and Buprenorphine clients who are relatively stable on oral opioid replacement therapy (ORT). I was treating 27 such patients in 2008. There are recommended protocols and procedures for these patients. Originally, I completed the prescriber's course so as to be able to manage rapid detoxification of opiate addicts with Buprenorphine. I put this into practice at Jarrah House but also acquired clients (being the 27 mentioned above) who needed a community prescriber as my name was on the State register. As a result of the hearing at the Medical Board under Section 66 of the Medical Practice Act 1992, which arose from the PSB investigation, I was ordered to find those 27 patients another prescriber. * chronic non-cancer pain sufferers, not drug addicts but habituated to opiates because of their debility. I had 10 such patients under my care when I was ordered to stop prescribing S8 drugs. Most are elderly, relatively debilitated and complex patients. Despite my not being allowed to prescribe opiates, several of these patients continue to consult me. Their analgesia is managed elsewhere by either a specialist, the pain clinic, or another GP. I work in collaboration with these practitioners in caring for these patients. * chronic pain non-cancer patients who are addicted to opiates and often other substances. These patients frequently have mental health issues and multiple other co-morbidities. They are the most difficult patients to treat and four of the five in the Complaint belong to this group, though Patient E does not quite fit the profile. I treated approximately 10 such patients in the 5 years prior to 2008. There are less clear cut guidelines and protocols available for management of this group of patients than for the first two groups. I treated each patient in partnership with a pain clinic and acted in conjunction with specialist advice. My usual response to escalating doses was to ask for pain clinic advice and assistance. * patients taking benzodiazepines. I have rarely initiated treatment with this group of drugs except for alcohol detoxification. Benzodiazepines are useful for some forms of epilepsy especially as a form of emergency treatment. I have been using the National Prescribing Service ("NPS") patient education handout: sleep hygiene for insomniacs for the past 10 years. It has been my practice to advise those taking long term hypnotics that it is harmful and encouraged them to gradually cease taking them. My only other dealings with patients taking large doses of benzodiazepines, like Patient A, was at Jarrah House where patients are under 24 hour surveillance. 30The respondent acknowledged that Patient A did not fit within this profile and that she did not follow her usual response to escalating doses of drugs with Patient B. 31Since the complaint was filed, the respondent, in her written statement said that: 114. The investigation of the matters contained in the Complaint has had a very significant effect on me personally and professionally. I had considered myself to be a caring, compassionate and committed medical practitioner and have tried to do the best for all my patients and not to give up on them. However, I recognise that I have made errors in the way I practised. 115. I recognise that my prescribing for the patients identified in the Complaint fell short of appropriate clinical practice. Despite my experience at Jarrah House and my long career in medicine I realise that I was not able to deal appropriately with manipulative or demanding patients and I did not have in place sufficient safeguards to manage them in accordance with reasonable practice and in accordance with the legal requirements. 116. Poor record keeping resulted in the confusion over the misspelling of the name of Patient C. My medical record keeping has been criticised. I accept that criticism and have changed my method of record keeping. 117. There was also a lack of knowledge of regulations and the requirements as to the content of records and prescriptions, which meant I failed to adhere to legal requirements and the necessity for detailed and documented treatment plans. I believe I have addressed these issues. In 2008 my medical notes were audited. I understand that the auditor was satisfied with the manner in which my records have been maintained. 118. I have been mentored since the 'section 66' hearing. That mentoring has assisted me to review my past practice and to plan and implement appropriate changes. My mentor, Dr James Bell who was director of Langton Clinic told me that I was "too soft" in dealing with the complex and demanding people identified in the Complaint and considered that I should have set proper boundaries in the treatment, care and management of those patients. I have reflected a great deal on this aspect and accept Dr Bell's criticisms. I regret very much that I allowed myself to prescribe for these patients in the way I did and to manage their care as I did. 119. My current mentor is Dr Lucy Harvey-Dodds a staff specialist in drug and alcohol based at St George Hospital. My most recent mentoring session with Dr Harvey-Dodds was in November 2010. Our next session is scheduled to occur in January 2011. During the course of our sessions Dr Harvey-Dodds and I discuss problems in the clinical management of more complex and demanding patients. 120. My mentors and the further education I have undertaken have assisted me a great deal in understanding the particular demands and complexities in treating or trying to treat drug dependent patients. That is something that has been difficult to learn as I believed that one should continue to try to help one's patients. Part of the knowledge I have gained is an understanding that it is not actually helping a patient to continue to prescribe narcotics or benzodiazepines for them but may prolong the addiction and/or exacerbate related medical conditions. 121. The inability to prescribe S8 and S4D drugs and panadeine forte has restricted me in treating patients in pain. I have treated four terminally ill patients in conjunction with the palliative care team who had to prescribe S8 drugs for these patients. On many occasions I could offer only Tramadol for acute pain, as in injuries or post surgery, once simple analgesics proved to be inadequate. I continue to have a number of elderly patients who suffer from chronic pain who I co-manage with another general practitioner, specialist or clinic. I am careful not to be involved or interfere in the prescribing, administration or recommendation for these substances but continue to manage the patient's other co-morbidities. In addition a number of my patients seek out another practitioner just to be prescribed a hypnotic. I make a note of the prescriber's details and enter the information into my notes. 122. I had two instances of my patients having a fit in my rooms, and no benzodiazepine available to administer. Fortunately the ambulance arrived with good speed for the first and the second subsided without further treatment. 32The respondent provided an impressive array of character references. They included an Emeritus Professor of Medicine, a Conjoint Professor of Psychiatry, Faculty of Medicine, a Professor of Ageing and Mental Health, 2 Associate Professors, 12 Doctors of Medicine, an Ophthalmologist, and a Catholic Priest. 33The respondent also attached the following articles which she had read: The Treatment of Benzodiazepine Dependence, Addiction (1994), Heather Ashton; Withdrawing Benzodiazepines in Primary Care CNS Drugs , Vol 23(i) 1 January 2009, Malcolm Lader, Andre Tylee, John Donoghue; The Diagnosis and Management of Benzodiazepine Dependence, Heather Ashton, Current Opinion in Psychiatry , 2005; Three articles, indicating the Prescription Shopping Hotline was suspended in August 2002 and reintroduced on 3 January 2005. 34In respect of the respondent's continuing education, she stated that she regularly attends Grand Rounds. This is hospital based and there is usually a lecture from one of the different specialties on specific topics of interest. On occasions there are visitors from overseas or interstate, or from other hospitals talking about a variety of different topics. The respondent said this is of huge relevance in that she knows the latest treatments of patients in hospital. It also introduces her to various consultants who are working in her local hospital. In addition, there is the ability to liaise with specialists. The respondent stated, for example, "if they are "on the spot I can chat to them about certain patients. I have found it very useful in the past 10 years or so I have been attending it." 35The respondent said that she attends the Grand Rounds most weeks on a Wednesday morning. The respondent has also been undertaking the Check on Check program for many years. This is learning based on a monthly newsletter and monthly questionnaire together with different topics that are covered annually. A participant is required to complete a questionnaire and a score is given. A pass is 85 per cent, although participants have access to notes. She has also read a variety of medical journals and listened to broadcast "GP" tapes for many years. The respondent has also participated in professional development programs on a regular basis. She has also been involved in some research with the Dementia Unit of the Prince of Wales Hospital. This research involves examining how general practitioners can detect early signs of dementia and how it can be treated. In addition, she has been involved since she commenced at the Waratah Practice with research into Liptin, which is an oral medication for diabetics and also a Zostor study, which was examining herpes zostor in older people. The respondent has also been involved in a program called "PACE" which involved an evaluation of paracetamol and its benefits in respect of the treatment of low-back pain. 36Since the Complaint, the respondent has been a participant at the Double Bay Cooper Street Clinic, which is run by Ms Sue Ireland and one of the drug companies. The Clinic is held every six weeks on a Tuesday night. A small group of general practitioners attend. Case studies are provided and specialists give talks on various topics of interest. The respondent said this was helping her. In addition, she has been involved in various mental health updates, notably for the Black Dog Institute, as well as one at the Head and Mind Centre at the University of Sydney. She has also been involved in an audit and study of identifying chronic lung disease in patients. This has involved screening and intervention with a view to motivating patients to improve their outlook by stopping smoking and keeping to their medications. 37The respondent indicated to the Tribunal that she was desirous of having her Schedule 8 prescribing rights reinstated. She had been an authorised methadone prescriber before her rights were removed. 38Apart from her mentoring, her evidence was that to assist her in dispensing Schedule 8 drugs, she had been to various medical updates to do with the treatment of back pain with Dr Khor and other experts in pain management. At least one of the Grand Rounds was to do with chronic back pain, which she thought was run by Dr Goreman. She has also attended a palliative care update. She also attended a Radiologist Centre which specifically dealt with CAT scans of the back and MRI imaging and how it may be beneficial to patients with severe back pain. The respondent has also attended as required, continuing professional development seminars. Her evidence was that she was not aware of any course that specifically increased one's ability to be strict in dispensing Schedule 8 drugs. She said that she was desirous of attending such a course if one existed. However, she believed that the Double Bay Cooper Street Clinic had likely been helpful in this regard as discussion occurred in respect of how to deal with difficult patients, how to motivate them and also how to say no to them. The respondent commenced attending the Clinic in November 2010. Character evidence 39Dr Harvey-Dodds was one of the referees for the respondent and her most recent mentor. She is an Addiction Medicine Specialist and a Fellow of the Australian Chapter of Addiction Medicine (Royal College of Physicians). Dr Harvey-Dodds is employed as staff specialist in Addiction Medicine in the Central Network, South Eastern Sydney and Illawarra Health Service. 40Dr Harvey-Dodds took over the mentoring role of the respondent when Associate Professor Bell, the Area Director of Drug and Alcohol, moved overseas at the beginning of 2009. He had seen the respondent on three occasions: 21 October 2008, 2 November 2008 and 4 December 2008. 41Dr Harvey-Dodds met the respondent for case discussion and education sessions on 26 March 2009, 7 May 2009, 11 June 2009, 10 September 2009, 10 December 2009 and 11 March 2010. These sessions continued through to 2011 with the most recent session occurring approximately two months prior to the hearing. 42Dr Harvey-Dodds stated that in her opinion, the respondent was an enthusiastic general practitioner who is compassionate and dedicated to caring for her patients. She believes that the respondent upholds the standards required of a medical practitioner in terms of treating patients as individuals and respecting their dignity and without creating harm to them. She stated that she believed that the respondent held the attitude that she should attempt to take on the care of all those who approach her for advice and treatment. The respondent's concern was that if she did not provide them with this input, many of them would not be able to access this management elsewhere. 43Dr Harvey-Dodds knowledge of the respondent prior to supervising her was through her work at the Langton Centre in Surry Hills. The respondent prescribed Opioid Maintenance Treatment for a number of patients that were also managed by the Centre. She was seen as hardworking and supportive of her patients. It was apparent that she did not have a conservative approach to benzodiazepine prescribing in this population. 44Dr Harvey-Dodds stated that the respondent had displayed a genuine remorse for her behaviour. She believed that the respondent's intention with all her patients had been to provide treatment to enable positive outcomes. She said that the fact she had caused harm had been of great distress to the respondent. She believed that the respondent now understands the importance of setting limitations and boundaries, particularly with opiode or benzodiazepine dependent patients. 45Dr Harvey-Dodds was required for cross-examination. Her evidence was that the Langton Centre is the main drug and alcohol centre in the Illawarra Health Service. It had previously been directed by Professor Bell who until recently, was the most renowned drug and alcohol practitioner in Australia. He is now working in the United Kingdom. Dr Bell asked Dr Harvey-Dodds to continue the task of mentoring the respondent. Dr Harvey-Dodds has recently moved to work in the St George area and it will not be practicable for her to continue to mentor the respondent. She has discussed with the Director of the Langton Centre, Associate Professor Nicholas Lintzeris, the respondent's situation and he is amenable to another medical practitioner within the Unit continuing with the task of mentoring the respondent. 46Dr Harvey-Dodds gave evidence about discussions with the respondent regarding the administration of various Schedule 8 drugs and about boundaries between medical practitioners and patients. She believed it was absolutely beneficial for the respondent to be now working in a group practice where there was increased support for her whenever she may need it in terms of advice in respect of seeing members of the drug dependent population. 47Dr Harvey-Dodds expressed the view that if the respondent was to have her entitlement to prescribe Schedule 4D and Schedule 8 drugs reinstated, it would be appropriate for up to a period of 12 months for there to be periodic audits of her prescriptions of such drugs. 48During cross-examination, Dr Harvey-Dodds said that she did not think it was unreasonable to on occasions prescribe for a patient without seeing that patient. She said it would depend very much on the relationship and the history prior to that as to whether there was knowledge of previous prescriptions and whether that patient was well engaged in the Service and if it was a repeat prescription. She said it was difficult to express a view without a specific case. 49In agreeing that it was appropriate to try and reduce the consumption of benzodiazepines in addicted patients, Dr Harvey-Dodds said that one of the main issues is the patient's motivation to change. If patients do not want to reduce their intake, for example Valium, and they are able to obtain supplies, whether that be from general practitioners, or on the black market, then it is very difficult as a practitioner to stop that patient continuing to take the same amount of medication. However, if a person came to her and requested support to reduce the amount that they are taking, then she would assist them. 50Her evidence was that the general consensus regarding reducing the amounts of Valium 5 mg tablets would be to do it reasonably slowly, otherwise there is a risk of, for example, seizures. It would be done slowly over a number of weeks by reducing 5 mg a fortnight maximum. That would be as an out-patient. There is the opportunity to reduce it more rapidly as an in-patient. Dr Harvey-Dodds agreed that it would be necessary to see the patient, or have a phone consultation from time to time. In addition, psychological therapy was a key part of the treatment package. 51Dr Harvey-Dodds did not find it surprising given the respondent's age and her level of experience as a general practitioner that she was gullible or not tough enough in dealing with drug-dependent patients. She said that in her experience, there are many general practitioners who do not notice behaviour patterns in patients. It was not the first time that she had experienced a general practitioner struggling to deal with drug-dependent patients. Dr Harvey-Dodds said that she had discussed with the respondent that if she had her prescribing rights reinstated, that key strategies such as seeking help from a specialist, such as at the Langton Centre, should be put in place. The Langton Centre has a 24 hour on-call service available for doctors. Dr Harvey-Dodds' evidence was that over the period of her mentorship with the respondent, she saw a change in her leading to a realisation concerning, in particular, the importance of boundaries, and the availability of support through the Langton Centre which had not previously been accessed by her. She acknowledged that as a result of her discussions with the respondent, she now has a greater awareness that she needs to be tougher in dealing with certain patients. Expert evidence 52Dr Ian M Chung, a general practitioner, was called by the HCCC to give his opinion in respect of the treatment of the five patients, the subject of the complaint. Dr Chung provided reports to the HCCC dated 22 March 2009, 25 July 2009, 26 November 2009 and 12 December 2010. In his report dated 22 March 2009, after analysing each of the particulars of the complaint, Dr Chung concluded as follows: ... I am very severely critical of Dr Gorondy-Novak's overall pattern of conduct with this patient group considered in this report. Her conduct attracts my very severe disapproval and in my opinion, her conduct would attract the very severe disapproval of my competent and ethical peers of an equivalent level of training or experience. 53Dr Chung was extensively cross-examined in respect of his reports and the conclusions that he reached. Arising from the evidence that he gave during cross-examination, Mr Windsor submitted that the Tribunal should not accept Dr Chung's criticism of the respondent. Mr Windsor submitted that the Tribunal could not be satisfied that Dr Chung had exercised the diligence, meticulous attention to detail and professional considerations necessary for a proper assessment of the respondent's conduct; that he was, without any excuse, ill-prepared; that he offered no evidence why he did not avail himself of the brief which was readily available in his study; that the Tribunal could not be satisfied that Dr Chung checked to satisfy himself that assertions made in the letter sent to him by the HCCC regarding the respondent were correct, or at least had a reliable basis upon which he could proffer opinions and Dr Chung ought not have adopted the HCCC's ill-conceived, highly emotive and formulaic mantra to describe the respondent's conduct. 54The basis for this submission was that when Dr Chung's evidence, particularly in cross-examination, was analysed, the Tribunal could not reasonably know what assumptions Dr Chung relied upon to reach his opinion. Dr Chung acknowledged that the facts that he relied upon in respect of the failure of the respondent to refer Patient A for specialist assessment were those referred to by him in his initial report from the information provided to him. 55It became clear that parts of Dr Chung's report were simply a "cut and paste", taking the form of words given to him by the HCCC. In this regard, it is fair to observe his lack of attention to detail was so deficient that in one instance, in adopting the "cut and paste" method, he transposed part of an answer relating to Patient A into a written opinion concerning Patient B, which appeared to have formed the basis for his criticism of the respondent in respect of her treatment of Patient B. 56Dr Chung was unable to identify what guidelines he relied upon for the purposes of his report, or the article he read for the purposes of preparing his reports. It is also clear, from Dr Chung's evidence, that he accepted what was "apparently" the position in respect of the various patients' prescription records, without checking such records. When analysed, these factors, including referring to the respondent from time to time as "him or her" raised a real concern in the Tribunal's mind as to whether Dr Chung undertook a careful and detailed examination of the material provided to him by the HCCC, or whether it was merely a cursory perusal of the material. 57We accept that Dr Chung is a highly respected medical practitioner. He was critical of the respondent's conduct. The Tribunal acknowledges that Dr Chung's expertise was not challenged and that it was certain individual conclusions that he reached which were the subject of challenge and criticism. In light of Dr Chung's evidence and at least one glaring error in his report to which we have referred, the Tribunal proposes to approach Dr Chung's conclusions with caution. 58Ms McNaughton acknowledged that if the Tribunal reached such a conclusion in respect of the evidence of Dr Chung it, nevertheless, was entitled to rely upon its own expertise. We agree. 59In this respect, the Tribunal proposes to adopt the statement of principle by Street CJ (Moffitt P and Glass JA agreeing) in Kalil v Bray [1977] 1 NSWLR 256 in respect of the proper approach of an expert disciplinary tribunal. The Chief Justice observed at 261 - 262: ... The tribunal is in truth an expert panel, and as such it needs no expert evidence on matters within its particular field of expertise, that is to say, the field of veterinary science. Its function is to determine in the light of factual evidence, with or without supplementation by expert evidence, the proper veterinary conclusion to be drawn from such objective facts as may be established by the Evidence, bearing in mind at all times that its function is essentially, as its name imports, disciplinary. It provides a veterinary surgeon facing a charge with a forum constituted in the majority by his professional peers and supplemented, in the interests of natural justice, with judicial chairman ship. ... The purpose of setting up the tribunal, with its membership drawn from the ranks of veterinary surgeons, is to enable it to do the very thing that either a Bench of justices or a jury may not do, that is to say, to draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it. In doing so it will, no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science. Procedural fairness 60Mr Windsor submitted that the hearing was required to proceed on the pleaded amended complaint, and the particulars contained in the amended complaint mark the area of dispute: see generally Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan, Dawson JJ (Gaudron J dissenting). 61Mr Windsor further submitted that there were at least two procedural fairness requirements relevant for present purposes. The first was that the allegations against the practitioner must be specifically identified. The second was that the practitioner must be afforded an appropriate opportunity of being heard in relation to them: see Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 270. 62Senior counsel submitted that the function of the complaint, like any pleading, was to state with sufficient clarity the case that must be met. In this way, it serves to ensure the basic requirements of procedural fairness that a party should have the opportunity of meeting the case against him/her and to define the issues for determination. The rule that, in general, relief is confined to that available on the pleadings, secures the party(s) right to this basic requirement: Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 per Mason CJ and Gaudron J. 63Although this is clearly a correct statement of principle, this Tribunal is not and should not be seen as a court of strict pleading. 64In Lindsay v Health Care Complaints Commission [2010] NSWCA 194, Sackville AJA, (Giles and Young JJA agreeing) after discussing the requirements of procedural fairness and referring to various authorities, observed at [242] - [243]: [242] The principles stated in the cases to which I have referred do not necessarily apply to the Tribunal in the same way as they apply to proceedings in a court. The Tribunal's composition, jurisdiction and procedures differ from those normally (although not invariably) associated with a court. The membership of the Tribunal is not confined to a judge, but includes medical practitioners and a layperson: ss 147(3), 148. The Tribunal is obliged by the Act to conduct an " inquiry " into any complaint referred to it (s 159), not a function usually entrusted to a court. The Tribunal is empowered to conduct proceedings " as it sees fit ": s 161(1). It is not bound by the rules of law governing the admission of evidence, but " may inform itself of any matter in such manner as it thinks fit ": sched 2, cl 1. [243] Despite these matters, the Tribunal has the power and authority to make orders which have the effect of terminating a medical practitioner's right to pursue his or her profession. There can be no doubt that, in exercising its powers, the Tribunal is bound to observe the rules of procedural fairness. This may suggest that the principles applicable to courts may also apply to fact finding by the Tribunal. 65The object of the Medical Practice Act is to protect the health and safety of the public by providing mechanisms designed to ensure, inter alia, that medical practitioners are fit to practice medicine: s 2A of the Medical Practice Act . 66There were some errors in the complaint in respect of certain dates, the complete description of a drug and a section of the Poisons and Therapeutic Goods Act 1966. 67The HCCC sought to correct three errors in the amended complaint. This was objected to by Mr Windsor. Leave was granted by the Tribunal to rely on the amended complaint. In addition, leave was granted to the HCCC to withdraw particular 19. 68In the Tribunal's view, in respect of the amendments, there was no denial of procedural fairness to the respondent, nor could it be properly argued that any prejudice arose. There could be no suggestion that the respondent did not understand the substance of the complaint. 69Although reference was made by Mr Windsor to Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 86; (2010) 245 FLR 242 and Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705, the principles found in these authorities, in the Tribunal's view, are of little assistance. 70We agree with Mr Windsor that the amended complaint sets out the area of dispute and confines the complaint to the assertions, the particular acts or omissions, matters or things which are relevant to the amended complaint. Consideration 71We turn to consider the complaint and each particular. Patient A 72Patient A was born in 1961. He suffered from long standing substance abuse including alcohol, benzodiazepines and codeine. His addiction to benzodiazepines dated from his teenage years. He also suffered from agoraphobia, generalised anxiety disorder. His clinical history also included chronic pain. When he was 3 years of age, he was knocked down by a car and suffered head injuries. In 2000, he suffered a concussion, low back and left knee injuries in a second motor vehicle accident. A CT scan revealed an area in the right parieto-occipital region consistent with an old small focal infarct. After suffering the concussive injury, Patient A complained of persistent headaches. The second accident also had an adverse affect on his pre-existing anxiety/panic disorder and depression. He experienced increased agitation, withdrawal and depression. The respondent stated that her consultations in 2007, pain was not a feature except for dental pain. She believed that he was taking Panadeine Forte more out of habit than need. She said she concentrated on his benzodiazepine addiction and did not consider him to be in the chronic non-cancer pain category of patients. 73Patient A smoked and suffered from asthma. He was on a disability pension. He was married to Patient B and they had four daughters. The youngest had a rare congenital abnormality and had been in care since an infant. The second youngest had been diagnosed with autism. The two eldest had been treated for attention deficit disorder. Particular 1: 1. Between 3 January 2007 and 12 March 2007 the practitioner failed to refer Patient A, a known "doctor shopper" and benzodiazepine abuser, for specialist assessment and management of his addiction to diazepam. 74The respondent referred Patient A to a specialist, Dr Wodak, on 12 March 2007. The Tribunal finds that there was no failure to refer Patient A in the time period stipulated in the particular. The preposition "between", encompasses the date of the commencement and the date at the end of the period. Section 24 of the Interpretation Act 1987 provides: 24 Time of commencement of Acts and statutory rules If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day. 75This particular has not been made out. Particular 2: 2. Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe diazepam tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan. 76The evidence was that during 2007, the respondent continued to prescribe diazepam tablets at a very high rate without Patient A receiving any specialist intervention. The respondent's evidence was: Q. So, not only are you saying that you in fact prescribed too much for this man: You are saying you were not even aware of the extent to which you were prescribing too much for this man? A. That is what I am saying yes. 77The first time the respondent saw Patient A was on 3 January 2007. Patient A had attended on a consultant psychiatrist on three occasions in 2006 for his drug addiction. The consultant had provided advice regarding Patient A's drug addiction, including his addiction to diazepam. Relevantly, a letter to Dr Ktenas from Dr R Hampshire, a consultant psychiatrist, dated 14 August 2006 read: I have seen him on three occasions now, and have had no success whatsoever in getting him into a detox unit. Whatever psychiatric problems he has underlying his addictions is not immediately apparent, as his addiction dominates his presentation. His insistence that he is unable to get off Valium is extraordinary as it is incorrect. I am unable to offer him any treatment as he wants only to get Valium scripts. 50x5mg of Valium every 2 days. I am happy to certify that he has a valium addiction as bad as I have ever seen, but am unable to give him the treatment he deserves. In the event that he not (sic) link up with the Addictions Unit - say Albion St Clinic, Dr James Bell - then you will have to manage his addictions by prescribing him valium until you can get him into detox. Thank you for referring this man, who appears to have an incurable Valium addition - not in the sense that he could not enter into a reduction program, but in the sense that he does not want to. Perhaps you could manage him by reducing him by say one tablet every month - that is, 25 per day in August, 24 per day in September etc. You could take as long as you like to reduce his doses, say 3 or 4 years. You might also like to add an SSR1 Antidepressant, like Efexor XR - 150mg mane (sic) up to 300mg per day. They may be of some assistance in helping him get off his Valium, and also treat some of his underlying issues, which may include phobia states. Best wishes in managing this difficult, insightless man. I am happy to review him every 6 months, in the event that you can't get him to go to the addictions unit of a local teaching Hospital - in his case Albion Centre. 78The respondent's progress notes of 3 January 2007 for Patient A noted that he was to attend a consultant psychiatrist, Dr Dinnen, for treatment on 9 January 2007. The notes also record that the respondent intended to check "Doctor Shoppers". On 3 January 2007, the respondent had Patient A sign an agreement to restrict prescriptions of Valium to Waratah Medical Centre. The respondent's progress notes of 3 January 2007, also noted that Patient A was prepared to detox from 80 mg per day with reductions by one per week. She also had Patient A agree on 10 January 2007 to not obtain opiates from anywhere else. 79The notes of 3 January 2007 also record that Patient A was addicted to Valium and that he "does not want to get off them - can't." The respondent convinced him to see Dr Dinnen on 9 January 2007. The evidence discloses that the respondent was using Dr Hampshire's letter as a catalyst for her ongoing management of Patient A. The reduction of diazepam was in accordance with recognised clinical practises. It was accepted by Dr Chung that successful withdrawal strategy should include gradual dosage reductions and psychological support. Dr Chung agreed that unwilling patients should not be forced to withdraw from benzodiazepines as abrupt withdrawal, especially from high doses, can precipitate convulsions, acute psychotic, or confusional states, insomnia and panic reactions. 80Dr Heather Ashton, of the Clinical Psychopharmacology Unit, Department of Pharmacological Sciences, University of Newcastle upon Tyne in the United Kingdom, in an article titled "The Treatment of Benzodiazepine Dependence" expressed similar views to those of Dr Chung concerning dependency and the withdrawal from opiates. A similar view was expressed by CNS Drugs Vol 23(1) dated 1 January 2009, a document attached to the respondent's statement. It was observed that "a clearest strategy was to taper the medication; abrupt cessation can only be justified if a very serious adverse affect supervenes during treatment." The recommendation was to aim for withdrawal in six months. 81Patient A had a 20 year history of drug addiction, of which the respondent was aware. The respondent, acting upon Dr Hampshire's recommendation commenced a regime to reduce Patient A's tablets at 80mg per day. This corresponded to the Jarrah House practice at the time for the commencement dose for detoxification of benzodiazepine addicts. She succeeded in reducing Patient A's intake from 25 tablets per day to approximately 18. Her aim was to reduce down to 15 or 16 tablets per day over time. 82It is not without some reservations, particularly by two members of the Tribunal, that we find that the respondent had a documented management plan. It may be described as sparse and delphic. However, on balance, we find there was a documented management plan. The plan included that the dosages of diazepam were to be reduced, with the report of Dr Hampshire and the practice at Jarrah House being the starting point. Patient A was also required to sign an agreement. The respondent checked whether Patient A was a "doctor shopper". The respondent also referred Patient A to Dr Wodak, a drug and alcohol specialist. 83Dr Chung's evidence was that this constituted the elements of a management plan for the care of known or suspected drug abusers. The management plan in the Tribunal's view, is consistent with the Royal Australasian College of General Practitioners Guidelines ("RACGPG"). Dr Chung also agreed in circumstances where Patient A had agreed in March 2007 to attend on Dr Wodak later in the year, it was reasonable that the respondent should continue to prescribe diazepam. 84The respondent acknowledged that she should have recognised that her attempts to have Patient A withdraw from the drugs were futile. She said in light of Patient A's prevarication regarding referral and half-hearted co-operation with a treatment plan, she should have declined to prescribe further for him. Clearly, Patient A's condition was a legacy from other doctors when he came to the Waratah Centre. We would observe that patients on chronic pain medications should have an active management plan to effectively manage their condition. In addition, the respondent made little effort to enforce it. We are not comfortably satisfied that this particular has been established. Particular 3: Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan. 85When the respondent saw Patient A on 3 January 2007, she made the following record in the clinical records: 3-1-07 Taking Valium regularly seen Dr Hampshire: see letter addiction to Valium, does not want to get off them "can't" currently on 20 per day will see Dr Dinnen on 9 th of January last had script elsewhere early '06 will check [with] Dr Shoppers - Agreement signed OK will detox from 80 a day reducing by one per week Valium 5 auth[ority] (250) (16 per day) disabling spasticity P [anadeine] forte bd (120) 26308KW 29278KW (Dr Shoppers computer down) 1800 631 181 He does feature 86The respondent stated that she regarded Patient A's use of codeine with paracetamol as a secondary addiction which she could attempt to treat once his addiction to diazep am was under control. 87Dr Chung acknowledged that codeine phosphate withdrawal requires a personalised approach. Furthermore, the regime of withdrawal is made more difficult in respect of patients that are multi-substance abusers, as was Patient A. For these reasons, together with those relied upon in respect of particular 2, the Tribunal is not comfortably satisfied that this particular has been established. Particular 4: Between 3 January 2007 and 12 November 2007, the practitioner prescribed diazepam tablets in quantities which exceeded therapeutic guidelines contrary to Clause 79 of the Poisons and Therapeutic Goods Regulation 2002, 88Clause 79 provides: 79 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. 89Mr Windsor submitted that the particular was misleading. Senior counsel contended that on the one hand, the particular said the prescription "exceeded therapeutic guidelines" which was said to have been contrary to cl 79 of the Poisons and Therapeutic Goods Regulation 2002. However, senior counsel observed cl 79 did not speak of exceeding therapeutic guidelines, but rather, was concerned with prescribing not in accordance with "the recognised therapeutic standard". 90Mr Windsor's contention was that there was no single recognised therapeutic standard. This may be so, but in the Tribunal's view, the proper interpretation of cl 79 of the Poisons and Therapeutic Goods Regulation is that the words "the recognised therapeutic standard" must be construed on the basis of recognised and accepted standards within the medical profession of practitioners of an equivalent level of training and experience as they relate to the prescribing, use and supply of drugs. 91The recognised standard is informed by the RACGPG for the rational use of benzodiazepines. The RACGPG includes reference to treating drug-dependent patients using high doses of benzodiazepines on a regular basis; the Department of Health and Ageing Publication "Drugs at a Glance - Role of General Practitioners", and the MIMS guidelines. 92In the Tribunal's view, and we find, there is a recognised standard within the medical profession in relation to the prescribing of drugs of addiction and/or abuse in regards to the exercise of responsible medical judgment, departure from which would be considered unacceptable by practitioners of good repute and competence. The avoidance of inappropriate use of drugs with a potential of abuse and/or addiction outside of the recognised guidelines is a standard of professional conduct that would be reasonably expected of a practitioner of an equivalent level of training and experience. 93The recognised therapeutic standard of what is appropriate in the circumstances, as stated in Dr Chung's report, would include the following: (i) strict adherence to all laws, rules and regulations both State and Federal pertaining to the prescribing, use, storage and medical recording of drugs and poisons being used and/or prescribed by the practitioner; (ii) observance of all recognised clinical practices, knowledge and research concerning the safe prescribing and use of drugs of addiction; (iii) scrupulous avoidance of any prescribing practices that may risk inducing or perpetuating addiction and/or abuse to any drug; (iv) care to protect the patient from possible side affects, drug interactions and other deleterious effects due to the prescribing and use of the drugs; (v) obtaining adequate evidence that the drug prescribed is necessary and the most appropriate method of treating the patient and that the patient is adequately diagnosed as suffering with a condition requiring the drug being prescribed by the practitioner; (vi) ensuring that the patient is not addicted to this drug and any other drug and that the patient is not at risk of addiction and/or abuse of the drug; (vii) ensuring that the duration of the drug used not only meets with all legal requirements but also does not place the patient at any risk including the risk of addiction and/or abuse of the drug; (viii) ensuring that the patient receives treatment and/or referral to specialists to address the cause of the symptom being treated; (ix) ensure that the patient is given every encouragement and referral to alternative and non-addictive pain management pain options, eg pain clinics; (x) accept any and all advice, instructions and counselling offered by the PSB, the New South Wales Medical Board, or any other statutory body, as well as any medical peer group whose attention is drawn to any irregularities in prescribing by the doctor. 94Furthermore, there is a recognised standard within the medical profession in relation to the quantities, purposes and precautions to be observed in prescribing benzodiazepines to patients. At minimum, this would include following the recommendations of the manufacturer of the drug, any guidelines of the drug and alcohol services of the NSW Department of Health and/or the professional medical associations or colleges. 95Similarly, there is a recognised standard within the medical profession in relation to the therapeutic qualities in which compound codeine preparations, Panadeine Forte, Codral Forte and all similar compound codeine tablets should be prescribed to patients. The standards pertaining to the prescribing of drugs of addiction generally were applied to the drugs in this group. The recognised standard would be to not exceed the manufacturer's recommended dose which is one to two tablets, to a maximum of eight tablets in 24 hours. The continuous and consistent prescribing of codeine compounds in excess of two months may cause a development of tolerance and should be avoided. 96Similarly, there is a standard within the medical profession in relation to the prescribing and administration of narcotic drugs including all opioid derivatives including morphine, oxycodone and pethidine to patients, departure from which standard it would be considered unacceptable to practitioners of good repute and competence. 97In the Tribunal's view, and we find, the recognised therapeutic standard must ultimately be a matter for the Tribunal, taking into account the matters referred to above. Were this not the case, cl 79 would be otiose and could never result in a successful prosecution. The Tribunal is entitled to be informed by expert evidence, together with its own member experts, in determining the recognised therapeutic standards. 98The respondent agreed that for the period over which the quantities of drugs were prescribed was contrary to reasonable therapeutic practice. Furthermore, it is to be remembered that this Tribunal is dealing with a practitioner who has been in practice since 1971. We are comfortably satisfied, for the reasons set out, that this particular has been established. Particular 5: Between 27 March 2007 and 23 October 2007, the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 mg tablets for a period the length of which exceeded therapeutic guidelines; and (sic). 99Mr Windsor submitted that this particular was also misleading because of the use of the word "and" at the end of the particular, which implied a continuation of the particular. Senior counsel submitted, given the confusion created on the face of the particular, there ought to be no finding adverse to the respondent based on this particular. 100The Tribunal rejects this contention. The particular is clear on its face and the respondent had no difficulty in dealing with it. She apparently prescribed at a rate that allowed Patient A to obtain compound codeine containing tablets at a rate of up to nine per day between 28 August 2007 and 23 October 2007. The respondent apparently prescribed during the relevant period of this particular at the rate that allowed Patient A to obtain diazepam 5mg tablets at an average of 19 tablets per day. 101Once again, Mr Windsor submitted that the Tribunal could not be satisfied in the context of this case, that the treatment provisions of prescriptions over the period was contrary to therapeutic guidelines. He acknowledged that the MIMS guidelines provided a dosage and administration rate for paracetamol and codeine, but did not set a temporal limit on the administration. 102We are mindful that Dr Chung acknowledged that in circumstances where Patient A had agreed in 2007 to attend on Dr Wodak later in the year, it was reasonable that the respondent should continue to manage Patient A in the interim period pending specialist assistance. However, we propose to adopt our earlier reasoning in respect of what would be "a period the length of which exceeded therapeutic guidelines." We take into account that Patient A was a difficult patient to manage because of his drug addiction. We do not again set out what is contained in his clinical notes. However, in the Tribunal's view, the prescribing needs to be seen in light of Patient A being a drug abuser and a "doctor shopper", facts which were known to the respondent. 103Furthermore, the respondent's conduct should be considered in the context of her prescribing other drugs with addictive potential in conjunction with her prescribing of codeine compound medications. As we have already observed, the respondent has been in practice since 1971 and has a higher level of experience in respect of drug abuse in the community through her attendance and work at Jarrah House. 104We also note that the respondent agreed that the period over which the quantities of drugs were prescribed was contrary to reasonable therapeutic practice. She stated that she had hoped to better assist Patient A's use of codeine with paracetamol once his addiction to diazepam was under control. She said that she recognised this to be an error in her therapeutic management of Patient A's use of codeine phosphate with paracetamol. 105We find the respondent's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience. 106We are comfortably satisfied that this particular has been established. Particular 6: Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient A contrary to Clauses 5 & 6 of the Medical Practice Regulation 2003. 107Relevantly, the Regulation provides: Part 3 Records 5 Records relating to patients (1) A registered medical practitioner or medical corporation engaged in the provision of medical services must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or corporation. (2) This clause does not affect section 127 (4) of the Act. (3) For avoidance of doubt, contravention of this clause is not an offence. (4) Subclause (1) does not apply to the following: (a) a public health organisation within the meaning of the Health Services Act 1997 , (b) a private hospital, (c) a day procedure centre, (d) a nursing home within the meaning of the Nursing Homes Act 1988 . (5) Subclause (4) does not: (a) affect the application of subclause (1) to a registered medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (4), or (b) affect the operation of section 126 (2) of the Act in relation to a record made under this clause before 18 May 2001. 6 When records are to be made (1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards. (2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned. Schedule 2 Records relating to patients (Clause 5) 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include: (a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), and (b) particulars of any clinical opinion reached by the registered medical practitioner, and (c) any plan of treatment for the patient, and (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the registered medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic given to the patient (if any), (e) the tissues (if any) sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to any medical treatment (including any medical or surgical procedure) proposed by the registered medical practitioner who treats the patient must be kept as part of the record relating to that patient. 108The Tribunal has inspected the records of the respondent's treatment of Patient A. The records are deficient in respect of medical history, results of any physical examination, results of any tests performed on Patient A, information concerning allergies, particulars of any clinical opinion, and the nature of treatment. 109The respondent acknowledged that her record-keeping was unsatisfactory, as recommended by the Medical Council. She said that she has completely revised and updated her method of record-keeping since 2007. She has adopted most of the components of a computerised medical record-keeping system, known as Medical Director. 110It was a condition of the respondent's registration since 2007 that an audit of her medical practice be undertaken. Since the completion of that audit in November 2008, the audit condition was removed from her medical practice registration. 111The Tribunal is comfortably satisfied that this particular has been established. Patient B 112Patient B was the wife of Patient A. She suffered from anxiety, agoraphobia, substance abuse, and chronic pain. She had suffered from low back pain since a fall in 1999, a disc lesion at L4/5, trigeminal neuralgia, asthma and sinusitis. She was treated for migraine and abdominal pain from irritable bowel syndrome and back pain. She was treated for endometriosis at the Royal Hospital for Women and subsequently developed a pelvic infection which required hospitalisation at the Prince of Wales Hospital. Patient B often used a walking stick, looked unwell and presented as pale, thin and weak. Particular 7: Between 3 January 2006 and 12 November 2007 the practitioner prescribed diazepam tablets to Patient B in excess of therapeutic guidelines when she knew or ought to have known that Dr Ktenas, another general practitioner who used the same medical records, was also prescribing diazepam tablets for Patient B during that period. 113The respondent acknowledged that Patient B's medical records were shared between herself and Dr Ktenas and that these records were, in the usual course, available to her on the occasions Patient B attended for treatment. 114The respondent acknowledged and regretted that she continued to prescribe diazepam for Patient B for a prolonged period of time. Her focus was on treating Patient B's chronic severe pain which was an immediate and pressing problem. She did not wish to exacerbate her pain by withdrawing "another crutch". 115Although Mr Windsor submitted that the respondent had not proved what constituted prescribing "in excess of therapeutic guidelines", the Tribunal has already rejected this submission. We rely upon the reasons earlier provided in answer to this submission (see particular 4). 116We would further observe that no therapeutic guideline would envisage two doctors prescribing the same diazepam simultaneously to a patient. 117We are comfortably satisfied that this particular has been established. Particular 8: Between 3 January 2006 and 12 November 2007 the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 tables in to Patient B in excess of therapeutic guidelines when she knew or ought to have known that Dr Ktenas, another general practitioner who used the same medical records, was also prescribing codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B during that period. 118The respondent acknowledged that the amount of codeine with paracetamol that Patient B was consuming exceeded the maximum recommended daily dose. The respondent was also aware that excessive use of codeine/paracetamol was less than ideal and she recorded that she wanted to separate the two entities of codeine and paracetamol as, in her view, the excess paracetamol was the danger, not just the codeine component. She said Patient B needed a stronger opioid and she hoped that after she had been to a pain clinic and had been given a plan of treatment by the multi-disciplinary team, she would have a better management plan including a plan for Schedule 8 drugs. 119The respondent cautioned Patient B in relation to taking the medication in the appropriate dosage and concerning the dangers of overdosing. No medication was prescribed for Patient B after 12 November 2007. 120The Tribunal is comfortably satisfied that this particular has been established. In reaching this conclusion, we also rely on the reasons set out above in determining that particular 7 was established. Particular 9: Between 3 January 2006 and 12 November 2007 the practitioner continued to prescribe diazepam for Patient B without specialist assessment and a documented management plan. 121The respondent acknowledged that she continued to prescribe diazepam and that Patient B should have been managed by specialist referral for drug addiction. 122The respondent stated that she was focused on the treatment of Patient B's pain. She wanted her to attend a pain clinic and had tried to get her to go to a pain clinic from February 2006, but Patient B had been reluctant to do so. 123Patient B was hospitalised several times in 2007 and the respondent hoped that the pain team at the hospital would have been consulted and a plan for pain management put in place upon her discharge. That did not occur. 124It took four months after the referrals were arranged before she could get an appointment at the pain clinic, but Patient B did not attend the appointment as she and her family were in the process of moving to Hawks Nest. 125The respondent stated that she sincerely regretted not seeking more urgent specialist intervention. 126The respondent had a documented management plan, although it was clearly deficient. It contained the following elements: (i) seeking consult with another medical practitioner with experience [Dr Khor at the POWH Pain Management Unit]; (ii) aware overuse of drugs; (iii) communicate with NSW Health regarding PT drug use; (iv) monitoring drug consumption; (v) notifying specialists in other fields (e.g. Professor Vancaille); (vi) additionally, arranging for psychologists, or noting a psychologist to assess the children. 127The Tribunal is comfortably satisfied that this particular has been established, with the exception of the failure to have a documented management plan. Particular 10: Between 3 January 2006 and 12 November 2007 the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B without specialist assessment and a documented management plan. 128The respondent acknowledged that she continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B in circumstances where there had not been a specialist assessment. The respondent also stated that she was trying to rationalise treatment of Patient B's chronic pain. She was expecting that her appointment with a pain clinic would result in both specialist assessment and a management plan. 129The Tribunal finds that this particular has been established for the reasons it found particular 9 established. Particular 11: Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient B contrary to Clause 5 & 6 of the Medical Practice Regulation 2003. 130The respondent acknowledged that there were deficiencies in making proper records of the treatment of Patient B. For the reasons relied upon in respect of particular 6, the Tribunal is comfortably satisfied that this particular has been established. Patient C 131The respondent stated that Patient C was born in 1969 in Lebanon. Patient C was a personal trainer/labourer. He first consulted the respondent on 8 November 2006 asking for pain relief for low back (lumbar spondylosis) pain from an injury sustained in a car accident in June 2006. The respondent stated that Patient C smoked and had a cough but otherwise seemed in good health. The respondent stated that as he was a new patient and came requesting strong pain relief, she considered he may have been a "doctor shopper" and did not prescribe for him. The respondent also stated that after he left the first appointments she rang "Doctor Shoppers" and was told that he did not feature. Patient C returned the next day and informed the respondent that he had been consulting Dr C Smithers at Sylvania but that he was in the process of moving to his partner's residence at Maroubra. She stated that she phoned Dr Smithers and confirmed that he had been prescribing Oxycontin 80 mg bd for this patient. Particular 12: At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C. (a) in a quantity, and/or for a purpose and/or for a duration, that did not accord with the recognised therapeutic standard of what was expected in the circumstances; (b) without specialist advice and a documented management plan; (c) without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002; (d) in the form of 80 mg tablets, concurrently prescribing also 20 mg tablets and 40 mg tablets when Patient C failed to attend pain clinic appointments; (e) in the form of 80 mg tablets, concurrently prescribing also 20 mg tables and 40 mg tables without any treatment plan documented in the records. 132The respondent noted that Dr Chung had criticised her for replacing prescriptions for Patient C that were allegedly lost or stolen. The respondent stated that she was too soft with Patient C and should not have accepted the explanations he offered for the loss/theft of medications. At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C: (a) in a quantity, and/or for a purpose and/or for a duration, that did not accord with the recognised therapeutic standard of what was expected in the circumstances. 133Patient C suffered from chronic non-malignant pain. Patient C told the respondent in November 2006 that he was to attend St Vincent's Hospital pain clinic in a month. He was also referred to the pain clinic at St George and Prince of Wales Hospitals. Subsequently, in March 2007, Patient C attended the St George Hospital Pain Clinic. Following his attendance the respondent received a letter from the pain clinic at that hospital. The multi-disciplinary team at the pain management unit put forward two options for further management - the use of an opioid contract if Patient C was to be continued on Oxycontin or referral to a methadone clinic. 134The respondent opted for the opiate contract. While the suggestion that he attend a methadone clinic would have been a good option, the respondent did not consider it a feasible one as she anticipated that Patient C would not have found it acceptable to regularly attend a methadone clinic. 135The respondent recognised that there are risks in the prescription of opioids but there are benefits in doing so even when the patient is an addict. She stated that it was a question of trying to balance the risks and benefits of continuing to prescribe opioids. The maximum quantity of opiate provided for Patient C was 240 mg per day. Whilst this is a large dose, in the respondent's experience it was not unusual for a patient such as Patient C, to be regularly treated with high doses of opiates by general practitioners in the community in concert with pain clinic management. At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C: (b) without specialist advice and a documented management plan. 136As noted in the respondent's response to particular 12(a), Patient C was to attend for specialist assessment at the St Vincent's Hospital Pain Clinic in a month. Patient C did not attend this appointment. Patient C attended the St George Hospital Pain Clinic on 12 March 2007. Patient C had missed two appointments at the St George Hospital Pain Clinic prior to March 2007, although the respondent said she did not know of Patient C's failures to attend until after receiving the letter from the Pain Management Unit, St George Hospital & Community Health Services dated 12 March 2007. She reviewed that letter on 21 March 2007. 137Once the respondent reviewed the letter from St George Hospital & Community Health Services, she instituted a management plan. 138Subsequently, the respondent completed an urgent referral to Dr Khor at the Prince of Wales Hospital on 27 July 2007. 139It was not until 27 November 2007 that the respondent received notification from the Prince of Wales Hospital that Patient C had been assessed and recommended a course of management, including cessation of oxycontin, switch to Fentanyl (opiate) patches, referral for physiotherapy and psychological treatment. At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C: (c) without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002. 140The respondent regrets that she failed to fully hand write the computer generated prescriptions. She did hand write the name of the Schedule 8 drug and the amount to be dispensed but not the daily dose which was only in computer generated typing. The respondent apologised for this oversight. At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C: (d) in the form of 80 mg tablets, concurrently prescribing also 20 mg tables and 40 mg tablets when Patient C failed to attend pain clinic appointments. 141The respondent stated that she prescribed in different strengths in an effort to reduce the usage and that the prescriptions were in accordance with the MIMS dosages. 142The respondent was not informed that Patient C had not attended the pain clinic appointments until after he re-established his bona fides by a subsequent attendance. At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C: (e) in the form of 80 mg tablets, concurrently prescribing also 20 mg tables and 40 mg tablets without any treatment pain documented in the records. 143In respect to particular 12(e) the respondent referred to her responses to particulars 12(b) and 12(d) as set out above. 144In view of the evidence of the respondent and that usage and dosage was in accordance with the MIMS guidelines, with the exception of particular 12(c), we are not comfortably satisfied that this particular has been established. Particular 13: On 12 December 2006 and/or, 7 February 2007, 4 April 2007, 18 April 2007, 2 June 2007, 3 July 2007, 23 July 2007, 20 September 2007, 13 October 2007, 15 October 2007 and 14 November 2007 the practitioner agreed to provide replacement prescriptions for oxycodone in circumstances when she should have not so agreed. 145The respondent acknowledged that she did provide replacement prescriptions of oxycodone. 146The evidence of the respondent discloses that Patient C reported a variety of misadventures, all documented in her clinical notes. The most serious was that he had been beaten up, on or about 13 October 2007 and again on 14 November 2007 and his medications stolen. Patient C supplied the respondent with a Police Incident Report in respect of the second assault. Patient C told the respondent that he knew his attackers and they were his relatives. The respondent stated that he told her that he had not reported the first incident in October 2007 as he was afraid for his de-facto partner and his newborn twin babies as well as himself. The respondent was also contacted by the patient's local pharmacy who questioned the prescribing. 147The respondent stated that since speaking with other professionals, she realised that she should not have provided the replacement prescriptions and should have been more alert to the prospect that Patient C was not truthful. In the Tribunal's view, a general practitioner of the respondent's experience should not only have recognised the repeated drug seeking behaviour, but should have had in place long established strategies to deal with a manipulative drug seeking patient. She was, it is to be remembered, a methodone prescriber. 148The respondent agreed in retrospect that she was gullible. At the time, the respondent thought that the circumstances as described by Patient C was legitimate. However, she was informed on more than one occasion that the prescriptions were being dispensed. Taking into account the facts and circumstances surrounding her conduct, we find this particular has been made out to the requisite standard. Particular 14: On 28 March 2007 and/or around 12 December 2007, the practitioner used an incorrect patient name and date of birth when applying to the PSB for an authority to prescribe drugs of addiction. 149On 28 March 2007 and/or on around 12 December 2007, the respondent used an incorrect patient name and date of birth when applying to the Pharmaceutical Services Branch ("PSB") for an Authority to prescribe drugs of addiction. 150The respondent acknowledged that she did use an incorrect patient name and date of birth when applying to the PSB for an Authority to prescribe drugs of addiction. Patient C's previous general practitioner was Dr C Smithers of Sylvania. Dr Smithers provided a referral letter in which Patient C's name was incorrectly spelt and an incorrect date of birth stated. 151Patient C was of Lebanese parentage. The respondent said that when she received the letter from Patient C's former general practitioner, she adopted the spelling on the referral letter and from that point on, the incorrect spelling continued to be used. At no stage did Patient C point out the discrepancy to her. 152The date of birth recorded was the date the patient supplied. This discrepancy was subsequently discovered. When the respondent asked Patient C about this, he said "Immigration made a mistake" about the month of his birth. 153The respondent stated that the erroneous information was provided to her in good faith to the PSB. 154We find that this was an honest mistake in circumstances where the respondent had been misled and was not otherwise corrected by Patient C. This particular has not been established to the requisite standard. Particular 15: On 7 February and/or, 5 March, 27 March, 4 April, 5 April, 18 April, 23 April, 30 April, 13 June, 25 June, 3 July, 4 July, 23 July and 27 July 2007 prescribed 80 mg oxcontin SR tablets to Patient C using an incorrect patient name, "Patient X". 155The respondent said that she gave the prescriptions to the person she knew to be Patient C who she was seeing and for whom she had written the prescriptions although acknowledging that his name was incorrectly spelt. 156For the reasons set out in respect of particular 14, the Tribunal finds that this particular is not made out. Particular 16: On 7 February and/or, 5 March 27 March, 4 April, 5 April, 18 April, 23 April, 30 April, 13 June, 25 June, 3 July, 23 July and 27 July 2007 the practitioner claimed Medicare benefits for consultations on those dates with Patient C when she had written prescriptions on those dates for Patient X. 157The respondent once again relied on the evidence given in answer to particular 14. 158The respondent stated that she misspelt Patient C's name on the prescriptions. The Medicare card had the correct details for Patient C. The respondent consulted with and claimed in respect of one patient only. The Medicare number on the prescription and the Medicare claim form matched. 159Since 2007, the respondent has adopted identification procedures with all patients and (subject to their agreement) has photographed them and retained their photos as part of her records. 160For the reasons set out in respect of particular 14, together with the further reasons, we find that this particular has not been established, such that it warrants any criticism of the respondent, apart from the fact that she should have been more accurate. Particular 17: The practitioner continued to prescribe oxycodone tablets for Patient C after she had been made aware on or around 4 July 2007 that Patient C was a "doctor shopper". 161The respondent stated that she should have refused to prescribe oxycodone and should have terminated her professional relationship with Patient C when she became aware that he had seen other doctors. What she did do (but now appreciates that she should not have done) was prescribe oxycodone in accordance with the Authority issued on 16 July 2007 and impress upon Patient C that he had to attend the pain clinic at Prince of Wales Hospital. 162The Tribunal finds that this particular has been established. Particular 18: Between 8 November 2006 and 5 January 2008, the practitioner failed to make and/or retain proper records of her treatment of Patient C contrary to Clause 5 and 6 of the Medical Practice Regulation 2003. 163Although in answer to this particular the respondent said that the remarks that she had made earlier in relation to her record keeping applied in respect of this particular, Dr Chung, during cross-examination when taken to the clinical records, agreed that in respect of Patient C, they were proper records for the purposes of ongoing treatment and care of Patient C. The Tribunal does not share Dr Chung's view of the clinical records. They suffer from the same deficiencies identified by the Tribunal in particular 6. We have examined the records of Patient C. We are comfortably satisfied that this particular has been made out. Patient D 164Patient D was born in 1969 and worked as a correctional officer at Long Bay Gaol. She lived alone. She injured her right knee at work for which she received worker's compensation and which resulted in her retiring in 2003. Patient D had a meniscal tear and articular damage requiring several surgical procedures including in 2004, a total knee replacement, implantation then removal of a permanent nerve stimulator. Her disability progressed to become recalcitrant regional pain syndrome and osteoporosis. She had seen a number of specialists for pain, including Dr Lam, Dr Salmon, a pain management specialist and Dr Hook, consultant psychiatrist. Her use of pain medication had escalated over the years and she became a "doctor shopper". Particular 19: 165The HCCC did not press this particular. Particular 20: The practitioner continued to prescribe oxycodone and diazepam 5 mg tablets to Patient D, a known "doctor shopper", when on 16 November 2006 a notation in the medical records indicates that she was dubious about the excuses being put forward in order to get further supplies of medication. 166The respondent agreed that she was dubious about the excuses offered by Patient D when she telephoned on 16 November 2006. On that date, she recorded in Patient D's notes: Per phone had fall "rushed to hospital, her medication and uggh boots lost in the process. Needs medications, pharmacy informed (I am dubious as to her story: too many misadventures, asked pharmacy to check that she has been to the hospital." 167The respondent now recognises that she was not tough enough in her professional management of Patient D. However, her decision to prescribe oxycodone and diazepam on 16 November 2006, was in the context that Patient D had seen a number of pain management specialists during 2006. 168The Tribunal is comfortably satisfied that this particular has been made out. Particular 21: The practitioner prescribed MS contin tablets on the following dates in 2001, 28 February and/or, 16 May, 1 June, 2 July, 9 July, 30 July, 3 August, 31 August, 12 September and 14 September, for a known 'doctor shopper' without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966; 169The respondent acknowledged that she did prescribe MS contin on the dates specified. However, she did not become aware that Patient D was a "doctor shopper" until after she left her consulting rooms on 14 September 2001. 170The respondent did not hold an Authority at the time of providing the prescriptions to Patient D. Clearly, the particular contains a typographical error. It should have referred to s 28 of the Poisons and Therapeutic Goods Act 1996 which informs s 29. As we have already observed, the object of the Medical Practice Act is to protect the health and safety of the public. The Tribunal is hearing a complaint in respect of a very experienced practitioner who was clearly aware of her obligations in respect of Schedule 4D and Schedule 8 drugs. Indeed, during the course of the Inquiry, the respondent relied upon a s 28 application for an Authority (see particular 25). We are not persuaded that the respondent did not understand the basis of the particular. The Tribunal is comfortably satisfied that this particular has been established. Particular 22: The practitioner prescribed oxycodone tablets on 3 April and on or, 26 June, 3 July, 9 August, 4 September, 13 October, 4 November, 20 November 2006, and 5 January 2007, for a known 'doctor shopper', without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966; 171The respondent became aware that Patient D was a "doctor shopper" on 14 September 2001. At that time, she told Dr Ktenas that Patient D was a "doctor shopper" and she recorded that on the front of Patient D's clinical records. She also told Patient D that she was not prepared to continue to provide a drug of addiction to her without an Authority. 172In or around the middle of 2004, the respondent provided a prescription for Patient D at a time when Dr Ktenas was not available. At that time, it was her understanding that Dr Ktenas held an Authority to prescribe Schedule 8 drugs for Patient D. In May 2005, she noted that Dr Ktenas had an opiate agreement with Patient D. She continued to provide prescriptions on occasions when Dr Ktenas was unavailable. The respondent stated that she deeply regretted treating Patient D without properly verifying the existence of an Authority. She also stated that at the time she was not aware that the only prescriber, or the prescriber's predesignated authorised locum, was authorised to write the Authority prescription. 173The Tribunal is comfortably satisfied that this particular has been established. Particular 23: The practitioner prescribed drugs of addiction on 23 and on or, 30 June, 8 September and 26 October 2007 without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002. 174The respondent admitted that she failed to fully hand write the computer generated prescriptions. She did hand write the name of the Schedule 8 drug and the amounts to be dispensed, but not the daily doses which was only in the computer generated typing. 175The respondent stated that she deeply regretted her failure to not fully hand write each prescription, in addition to providing the computer printout. She stated that almost 100 per cent of her prescriptions written at the Waratah Medical Centre were computer generated from 2001 onwards. The computer printout included name and address of Patient D, the prescriber's name, prescriber's number, phone number of practitioner, Patient D's Medicare number, the date written, strength of the medication and quantity to be dispensed in words and digits. Each item was printed on two pages. She therefore hand wrote the name of the medication and the amount to be dispensed on each and every prescription as well as duly signing each side. 176It was the respondent's understanding at the times she was treating Patient D, that only the name and quantity of the drugs needed to be handwritten on each of the pages of the computer generated prescriptions. 177The Tribunal is comfortably satisfied that this particular has been established. Particular 24: Between mid-2001 and 3 January 2008, the practitioner failed generally to make and/or retain proper records of her treatment of Patient D contrary to Clause 5 & 6 of the Medical Practice Regulation 2003, given the nature of the drugs being prescribed, the duration of prescribing and the problems being treated that was primarily drug abuse. 178The respondent admitted that the records were deficient. The Tribunal finds, in accordance with the reasons already given in respect of particular 6, that this particular has been established. Patient E 179Patient E was born in 1953. She was a registered nurse and sonographer. She had five children, including twins who had died at age seven months, after which she was admitted to the North Side Clinic. Her daughter died of encephalitis in 2006. Patient E had been married and divorced three times. She had a long clinical history, including breast augmentation in 1976, removal of the implants in 1997, SLE in 1992, lumbar laminectomy in 1996, irritable bowel syndrome with ongoing abdominal pain which dated from her time working in the Middle East, a hysterectomy in 1997, a knee injury in 2002, later arthroscopy in 2005 and 2007 and a fractured ankle in 2005. She suffers long standing asthma with at least one episode of respiratory failure requiring resuscitation in 2006. In 2007, she developed vaginal bleeding requiring hospital admission and a blood transfusion. From some time in 1996 she had used IMI pethidine for chronic pain. Patient E was successfully treated by the respondent. She discontinued using Pethidine and gave up smoking. Particular 25: The practitioner prescribed fifty-five prescriptions for pethidine in the period 4 January to 24 December 2007 without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966. 180The respondent's evidence was that she first applied for an Authority to prescribe a drug of addiction for Patient E in June 2004. Patient E had also been under continuous review from the pain clinic specialists at the Prince of Wales Hospital. 181On 8 November 2006, the respondent made an application for an Authority pursuant to s 28 of the Poisons and Therapeutic Goods Act to prescribe a drug of addiction, Pethidine 100, for Patient E. NSW Health asked the respondent to provide further details in relation to that application. Further details were provided on 9 November 2006. NSW Health was also provided with a copy of a report from Dr P O'Rourke, a medical practitioner attached to the Prince of Wales Hospital Pain Clinic. 182On 2 January 2007, NSW Health informed the respondent that it was awaiting a review of Patient E by Dr Khor from the Prince of Wales Hospital. The respondent was aware that Patient E had been seen at the Prince of Wales Hospital Pain Clinic on 5 December 2006 and was subsequently seen on 8 January 2007, 24 May 2007, 26 June 2007 and 30 October 2007. During this period, the respondent believed that the pain clinic was liaising with NSW Health and that an Authority was pending. A further Authority was not granted until January 2008. Thereafter, Patient E had further consultations with Dr Wodak and was able to switch to oral morphia, albeit with a continued itch. 183The Tribunal is comfortably satisfied that this particular has been established. Particular 26: Between 4 January and 24 December 2007, the practitioner prescribed fifty-five prescriptions for pethidine, each ordering twenty ampoules of pethidine 100 mg at a time, despite Patient E's clinical history and notwithstanding the advice from the Prince of Wales Pain Clinic on 24 May 2007 that they did not support continued pethidine use; 184The respondent acknowledged that the Prince of Wales Hospital Pain Clinic did not support continued long term pethidine use. However, in a subsequent letter from the pain clinic dated 16 June 2007, the clinic recognised the difficulty in treating Patient E with other opioid medications and until a tolerable alternative treatment could be implemented, she continued to use pethidine to keep functioning. 185Drug and alcohol specialists Dr Khor, and subsequently Dr Wodak, trialled alternative drug regimes. Each of those drug regimes resulted in adverse side effects. The oral morphia resulted in itching and sublingual buprenorphine. The second alternative, caused Patient E severe vomiting. 186In light of the respondent's admission, the Tribunal is comfortably satisfied that this particular has been established. Particular 27: The practitioner prescribed drugs of addiction in the period 4 January to 24 December 2007 without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002. 187For the reasons relied upon in finding that particular 23 had been established, the Tribunal also finds that this particular has been made out. Particular 28: In the period 4 January to 24 December 2007 the practitioner failed generally to make and/or retain proper records of her treatment of Patient E contrary to Clause 5 & 6 of the Medical Practice Regulation 2003, given the nature of the drugs being prescribed, the duration of prescribing and the problems being treated that was primarily drug abuse. 188The Tribunal relies on the reasons that led to it finding that particular 6 had been established. It makes a similar finding in respect of this particular. Summary of findings 189The Tribunal has determined that particulars 4, 5, 6, 7, 8, 9 (excluding the failure to have a documented management plan), 10 (excluding the failure to have a documented management plan), 11, 12(c), 13, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28 have each been established. Penalty 190The question to be determined is whether, in light of the Tribunal's findings, the respondent has been guilty of "unsatisfactory professional conduct", or whether the conduct goes further to come within the ambit of "professional misconduct". 191We have earlier set out the terms of s 36 and s 37 of the Medical Practice Act (at [8] - [9]) . 192Section 37 of the Medical Practice Act defines "professional misconduct" as "unsatisfactory professional conduct" of a sufficiently serious nature to justify suspension of the practitioner from practicing medicine, or the removal of the practitioner's name from the Register. 193Ms McNaughton submitted that the definition of professional misconduct could be either one instance, or a combination of less serious instances that cumulatively amount to "professional misconduct". Ms McNaughton submitted that "professional misconduct" was made out on either basis in this matter and that deregistration or suspension was open to the Tribunal. It was further submitted by Ms McNaughton that if it was determined that this was not required in this case, counsel invited the Tribunal to consider the imposition of conditions upon the respondent's registration. 194Whether the degree of seriousness is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. It has also been said that the conduct the subject of the complaint has to be such a departure from the accepted standards of the medical profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA, with whom Samuels JA agreed); Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at [35] - [36]. 195Ms McNaughton referred the Tribunal to Pillai v Messiter [No 2] (1989) 16 NSWLR 197, a matter that concerned allegations of a practitioner grossly over-prescribing an anti-convulsant drug and the patient's death. At 200, Kirby P described the test for professional misconduct as follows: Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: 196Counsel for the HCCC submitted that it is well accepted that a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law is not fit to be a medical practitioner. Ms McNaughton also referred to the decision of the Court of Appeal in Spicer v New South Wales Medical Board and Ors (Court of Appeal, 19 February 1981, unreported), where Hope JA (Reynolds and Hutley JJA agreeing) stated: 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 for the law, it cannot be said he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs, but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. 197His Honour's observations have been endorsed by this Tribunal on numerous occasions: Katherine Louise Carseldine and the Medical Practitioners Act (19 March 1991); Dr Clive Anthony Wolfe (18 November 1999); Re the Medical Practice Act 1992 and Dr Ghalib Mohammad Talib Hamad [2004] NSWMT 4; Re Dr Barry Cross and the Medical Practice Act (2 February 2006); Re Dr Susan Catchlove and the Medical Practice Act (8 February 2006); In Re Dr Gregory Wilcox [2007] NSWMT 3; In Re Dr Peter Keith [2007] NSWMT 12 at [65]; HCCC v Dr Kazmierczak [2007] NSWMT 14; HCCC v Dr Christopher Roberts [2007] NSWMT 15; HCCC v Kalokerinos [2007] NSWMT 17; Health Care Complaints Commission v Ameisen (28 January 2009). 198The respondent acknowledged that her conduct had fallen significantly below the standard expected of her and that her conduct would attract the disapproval of her peers. The conduct the subject of the complaint, much of which we have found established, occurred over a significant period of time between 2001 and 2007. It cannot therefore be said to be an isolated incident. It is clear from the evidence that the respondent was aware that she was required to have an authority to prescribe Schedule 8 drugs. Reasons such as being "too soft", "gullible" and her evidence that her prescribing was "hazardous" illustrated a failure on her part to understand the importance of responsible prescribing of Schedule 8 drugs. 199When the findings in respect of the respondent's conduct are considered on a cumulative basis, the Tribunal considers that the proved misconduct is of a sufficiently serious nature as to justify a suspension. It is therefore appropriately categorised as professional misconduct. We do not make such a finding in respect of the breach of the regulations regarding proper record keeping. This amounts to "unsatisfactory professional conduct". 200However, we do not think we should, taking into account all of the evidence and admissions of the respondent, order that the respondent be suspended or deregistered. Section 37 of the Medical Practice Act explicitly defines "professional misconduct" to be unsatisfactory conduct of a sufficiently serious kind to justify theoretical, but not necessarily, suspension or deregistration. It is the sufficiency of the seriousness of the conduct that converts it into professional misconduct. The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA). 201Ultimately, this Tribunal has to determine in making protective orders, whether the practitioner is currently fit to practice. The conduct complained of occurred more than four years ago. The Section 66 Inquiry, which occurred on 24 June 2008, considered some of the complaints the subject of this Inquiry and concluded that the respondent should be permitted to practice with conditions imposed on her right to practice, some of which continue today. The requirement for her medical records to be audited as being a condition of continued registration has now ceased. 202The respondent now practices in a large group practice and has not been the subject of any further complaints. This is a matter of particular significance as was acknowledged by the Tribunal in Dr Ghalib Mohammad Talib Hamad ; Health Care Complaints Commission v Ian Robert Hutchins (Matter No 40013 of 2008, 31 July 2009) . 203At least four of the patients the subject of the complaint, could be described as stereotypical drug addicts. Each of them suffered from serious medical conditions and experienced significant pain. In respect of four of the patients, the respondent sought the assistance of specialist practitioners to assist in their treatment and management. The respondent's conduct in prescribing drugs without an Authority in respect of Patient D and Patient E was clearly irresponsible. However, taking into account all of the circumstances in respect of each of the patients, it could not be characterised as being at the extreme end of the spectrum. The respondent checked whether some of the patients were "doctor shoppers"; she entered into an agreement with Patient A to only obtain opiates on prescription from either herself or Dr Ktenas, who practiced at the Waratah Medical Centre; referred the patients to a specialist drug and alcohol counsellor, or to a pain management clinic, and had a documented management plan for each patient. 204The respondent recognised that her prescribing for the patients identified in the complaint fell short of appropriate clinical practice. Despite her experience at Jarrah House and her long career in medicine, she realised that she was not able to deal appropriately with manipulative or demanding patients and she did not have in place sufficient safeguards to manage them in accordance with reasonable practice and with the legal requirements. She acknowledged that she was gullible and accepted her mentor, Dr Bell's criticism that she was "too soft" in dealing with the complex and demanding patients the subject of the complaint. 205The respondent has acknowledged her deficiencies and has been mentored since the Section 66 Inquiry by firstly, Dr Bell and then subsequently, Dr Harvey-Dodds. She has also been attending the Double Bay Cooper Street Clinic. She says that her mentors and the further education that she has undertaken have assisted her a great deal in understanding the particular demands and complexities in treating or trying to treat drug dependent patients. To date, her deficiencies in treating such patients has been addressed by not permitting her to prescribe Schedule 8 drugs. 206The respondent further stated that her inability to prescribe Section 8 and Section 4D drugs and Panadeine Forte had restricted her treatment of patients in pain. However, she has co-managed these patients and also a number of elderly patients, with another general practitioner, specialist, or clinic. 207The Tribunal was impressed by the evidence the respondent gave in acknowledging her wrongdoing and also in achieving an intellectual understanding of the proper boundaries that need to be set in the treatment, care and management of patients with a drug dependency. The Tribunal found the respondent to be an impressive and honest witness who was not trying to hide anything from the Tribunal, but rather acknowledging that there were deficiencies in her clinical competence which needed to be addressed. 208The respondent has been a general practitioner since 1971. Despite her experience, the respondent allowed herself to be manipulated by drug dependent patients. She was careless and irresponsible in administering Schedule 8 and Schedule 4D drugs, but in the Tribunal's view, not reckless, nor did she demonstrate a disregard for the law. Furthermore. on a proper analysis of the treatment of each of the patients, the respondent did not portray an indifference or abuse of the principles which accompany registration of a medical practitioner. 209The Tribunal accepts that the respondent is a caring, compassionate and committed medical practitioner who tried to do the best for all her patients including those with severe drug addiction and not give up on them. 210The respondent comes before this Tribunal with an unblemished record. There is no question of dishonesty or moral turpitude involved in this complaint. There is no question of financial gain. The Tribunal further finds that there is no question of deliberately engaging in conduct that could be construed as disgraceful or dishonourable. 211The evidence that was set out earlier in these reasons in respect of firstly, the understanding that the respondent now has of her deficiencies that led to this complaint and secondly, the further education and mentoring that she has undertaken and continues to undertake, has enabled the Tribunal to comfortably conclude that the respondent would not engage in this kind of wrongdoing in the future. The respondent said that "this Tribunal has been a short and sharp lesson, very painful for me, as well as the shame associated with being a doctor who is not allowed to prescribe certain medications." 212We have earlier referred to an impressive array of references from colleagues who spoke favourably and positively of the respondent's reputation. Each of the referees were provided with a copy of the complaint. Observations made by many of the referees included that the respondent was "principled and fair whose behaviour has always been exemplary"; "a leader within the Eastern Suburbs Medical Association"; "admired for accepting patients with difficulties and addictive problems"; "honest, upright and hardworking"; "heavily involved in ongoing medical education"; "outstanding high moral standards". 213Many of the referees also spoke of the respondent's dismay, distress and genuine remorse and contrition. The following extracts are examples of the opinions held by eminent persons: Professor Henry Brodaty, Professor Ageing and Mentor and Director of the Dementia Collaborative Research Centre both at the University of New South Wales and Director of Aged Care, Psychiatry at Prince of Wales Hospital stated: When Dr Gorondy-Novak was more involved with her local Division of General Practice she was a strong advocate for improving general practice care of older people. This is very important as many GP's do not show a commitment to aged care generally or dementia diagnosis and care specifically. In my interactions with Dr Gorondy-Novak I have always found her to be a person of integrity with admirable attitudes and qualities and high moral standards. I am aware of the charges that she is facing and was surprised to learn about these. As far as I know Dr Gorondy-Novak is a doctor of high reputation particularly for her work with the Division of General Practice. Dr Gorondy-Novak did say to me that she was remorseful about the actions that she took. She was clearly upset and tearful when she told me about these matters and asked me whether I would be prepared to provide a character reference. Professor Brian Draper, Conjoint Professor UNSW & Assistant Director, Academic Dept for Old Age Psychiatry, Prince of Wales Hospital stated: Dr Gorondy-Novak has always made appropriate referrals to our Service. I have not been aware of any issues of professional concern with the patients that we have had in common and, specifically, I have not noticed any aberrant prescribing patterns. Her work for the local division of general practice from my perspective of being outside of the division seems to be exemplary. Dr Harvey-Dodds, the respondent's mentor and an Addiction Medicine Specialist and Fellow of the Australian Chapter of Addiction Medicine (Royal Australasian College of Physicians) to whose evidence we have already referred observed: I believe she is caring and compassionate in nature and that she aims to practice medicine for the good of her patients without creating harm. I believe that she upholds the standards required of a Medical Practitioner in New South Wales in terms of treating patients as individuals and respecting their dignity and their right to confidentiality. I believe that she has held the attitude that she should attempt to take on the care of all those who approach her for advice and treatment. The concern for her would be that if she did not provide them with this input, many of them would not be able to access this management elsewhere. Dr K E Khor, Director, Department of Pain Management, Conjoint Senior Lecturer, UNSW, Prince of Wales Hospital observed: Dr Novak would often call to ask for advise (sic) and in my opinion, had always been cautious, considerate, caring, always seeking the test option for her patients and never trivialise any issues. I do not recall any patients where I have felt that Dr Novak had grossly mismanage (sic) their case. I consider her a good GP and a colleague. Dr George Marinos, Consultant Gastroenterologist and Hepatologist, who has known the respondent for the past eight years observed: In my opinion Dr Gorondy-Novak practices medicine at an exceedingly high standard. I regard her as an excellent diagnostician and a most competent practitioner. I know her as highly competent and extremely responsible doctor who is most considerate in her dealings with her patients. Many of our mutual patients speak extremely highly of her abilities, her management and care. I know her to be extremely intelligent, hardworking and highly motivated professional. She has also shown a dedicated approach to her medical profession and has consistently delivered a high-quality medical service to her local community. I would rank Dr Gorondy-Novak as one of the most caring and experienced General Practitioners servicing our community. 214Professor John M Dwyer, Emeritus Professor of Medicine and Head of the School of Medicine for the University of New South Wales at Prince of Wales Hospital from 1985 to 2005 observed: Kinga plays an important role in bridging hospital and community services. She is a caring and skilled physician committed to continuous learning and teaching. For many years she has contributed significantly to the Hospital's major weekly educational meeting. Compassion, patient focus, experience and common sense are constantly appreciated as characteristics of her interactions with her peers. I hold her in the highest esteem. I have read the details of the complaints made to the Medical Tribunal concerning some aspects of Dr Gorondy-Novak's treatment of certain patients by the Health Care Complaints Commission, but these have not led me to change the opinions expressed above. I have not discussed any aspect of the complaints with Dr Gordondy-Novak. Appropriate orders 215In determining the appropriate orders to be made, the primary consideration for the Tribunal is the protection of the public and not to punish the practitioner. Such protection itself involves a consideration of the gravity of the conduct, the risk of a recurrence of the misconduct, the need to deter other medical practitioners from engaging in similar conduct and to maintain the standards of the medical profession and public confidence in it. 216In Litchfield , the Court of Appeal in stating that the Tribunal's jurisdiction must be exercised bearing in mind the high standards required of medical practitioners in the practise of their profession, stated at 637: Moreover there was nothing to suggest that the doctor had become a changed person during the four and a half years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected "some isolated or passing departure from proper professional standards amounting to something less than proved unfitness": see New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 . In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 ; 84 WN (NSW) (Pt 2) 275 at 286 : ... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man." Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession. Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as it did. 217As to the gravity of the misconduct, the Court of Appeal said at 638: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. ... 218In determining the appropriate protective order, the Tribunal has taken into account the seriousness of the conduct; the admissions made by the respondent; the evidence that the practitioner has reformed; contrition and responsibility taken by the respondent, and the risk of recurrence. 219As the primary focus in determining protective orders is the protection of the public, subjective factors relating to the practitioner, such as her shame and personal ordeal, or absence of any other "blemish", have little or no weight: Buttsworth v Walton (Court of Appeal, 19 December 1991, unreported). 220In relation to the likelihood of the repetition of the misconduct, the Tribunal is firmly of the opinion that the respondent will not repeat her past misconduct. The Tribunal has arrived at this opinion as it considers the respondent committed the misconduct through a naivety and not a deliberate departure from acceptable standards. Her intention was to help very difficult patients get over their addiction, but she clearly made errors of judgment. 221The respondent has been the subject of conditions which precluded her from prescribing scheduled drugs for the past three years. This fact, together with the evidence of her insight into her deficiencies and her attempts to address those, leads us to conclude that it is highly unlikely that she would transgress again. 222The Tribunal is satisfied that if the respondent's right to prescribe Schedule 4 and Schedule 8 drugs is not reinstated, then the Tribunal can be confident that the public are not at risk by permitting the respondent to practice with conditions. Such conditions are intended to ensure that for a further period of time, the respondent continues with her education in respect of the matters that brought her before the Tribunal. We have also taken into account that the respondent is currently employed in a group medical practice. 223The Tribunal is mindful that an element of deterrence is required to assure the public that serious lapses in the conduct of practitioners will not be passed over, or put aside. Taking into account the circumstances of this case, the Tribunal considers that this deterrence can be achieved by means of imposing conditions upon the respondent's registration. Costs 224The question of costs is reserved. Any application in respect of costs should be made to the Deputy Chair within 14 days of the date of this Determination. Findings and orders 1. The Tribunal finds particulars 4, 5, 6, 7, 8, 9 (excluding the failure to have a management plan), 10 (excluding the failure to have a management plan), 11, 12(c), 13, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are proved. 2. The Tribunal finds that the practitioner's particularised conduct as proved in respect of particulars referred to in Order 1, with the exception of particulars 6, 11, 18, 24 and 28 amounted to professional misconduct. 3. The Tribunal finds that the practitioner's failure to make proper records (particulars 6, 11, 18, 24 and 28) amounted to unsatisfactory professional conduct. 4. The Tribunal reprimands Dr Gorondy-Novak. 5. Pursuant to s 61(1)(c) of the Medical Practice Act 1992, Dr Gorondy- Novak's registration is subject to the following conditions: (1) Not to prescribe, possess, supply, administer, handle or dispense any drug of addiction (drugs under Schedule 8 of the New South Wales Poisons List) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative under Appendix D of the Poisons and Therapeutic Goods Regulation 2002) or Codeine Phosphate 30 mg with Paracetamol compound preparation (Schedule 4). In order to comply fully with this condition, the Tribunal directs: (a)Her authorities as a medical practitioner under the provisions of the Poisons and Therapeutic Goods Regulation 2002 to prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative) or Codeine Phosphate 30 mg with Paracetamol compound preparation are withdrawn and remain withdrawn. (b)Any subsequent change in her Schedule 8 and/or Schedule 4D and/or Codeine Phosphate 30 mg with Paracetamol compound preparation authorities must be in accordance with the Council's protocol. Prior to the submission of any variation application to the Pharmaceutical Services, Department of Health, NSW she must seek and obtain approval of the Council to the lifting of this condition and to the reinstatement of any prescribing authority. (2) As part of any application for restoration of her Schedule 4D and/or Schedule 8 authorities, she is required to satisfy the Council that she has successfully completed at her own expense a course offered by the Pharmaceutical Services of the NSW Health Department to ensure she has a proper knowledge of prescribing practices and requirements, particularly in respect of Schedule 8 and Schedule 4D drugs. (We are aware that she has already completed a prescriber's course with another organisation). (3) To authorise and consent to any exchange of information between the Council and Medicare Australia or the Pharmaceutical Services of the NSW Health Department where such exchange is necessary to facilitate the monitoring of compliance with these conditions. (4) Within 28 days of the date of receipt of this Determination she is to notify and provide for approval by the Council the name and professional address of a general practitioner in a senior position who has agreed to act as her professional mentor. The mentor is to be provided with a copy of Guidelines for Mentors as provided by the Council and a copy of this Determination. The practitioner is to ensure that: (a)She and the mentor meet on a two monthly basis for at least two hours, the first meeting to occur within one fortnight of being advised that her nominated mentor has been approved. (b)She is to authorise the mentor to report, in an approved format, to the Council every four months about the fact of contact, and to inform the Council if there is any concern about her professional conduct, health or personal wellbeing. (c)She is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. (d)She will meet with the mentor for an initial period of nine months from the date of this Determination and therefore for such period as the Council may determine. (e)In the event that the approved mentor is no longer willing or able to continue as mentor, she is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. (f)She is to be responsible for any costs associated with the mentoring process. (g)The meetings should include discussion of the issues highlighted in the Tribunal's Determination including documented management plans for patients, appropriate prescribing practices particularly in respect of stereotypical drug addicts, reference of drug addicts to a specialist, and the various legislative and regulatory requirements that need to be met for proper medical practice and any personal and/or medical practice issues that may arise. (5)To complete within nine months of the date of this Determination and at her expense the distance education course "Issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Melbourne: (a)By close of business Friday 29 July 2011, she must provide documentary evidence to the Council of enrolment in the "Issues in General Practice Prescribing" course. (b)Within two weeks of completing the "Issues in General Practice Prescribing" course, she is to provide documentary evidence to the Council that she has satisfactorily completed the course. 6. Conditions 1, 2, 3 and 4 are to remain in place for a period of nine months from the date of this Determination. The Medical Council of New South Wales is the appropriate review body for the purpose of any review of these conditions after the expiry of that period. The Medical Council of New South Wales may remove or vary the conditions as it considers appropriate. 7. Whilst these conditions apply to the respondent's registration as a medical practitioner, she is to continue to be employed in a group medical practice. A group medical practice is one that employs a minimum of three full time medical practitioners. The respondent is to ensure, within seven days of the date of this Determination, that all practitioners in the group medical practice where she is employed are aware of the conditions imposed on the respondent's registration. 8. Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients. ********** 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: 30 June 2011