Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr McKenzie [2011] NSWMT 6 Hearing dates: 26 July 2011 Decision date: 27 July 2011 Before: Kavanagh J; Dr M Giuffrida; Dr V Sutton; Dr J Mair Decision: 1. The respondent's name be removed from the register of Medical Practitioners and he not be permitted to apply for re-registration for a period of 3 years from the date of the order. 2. The respondent pay the complainant's costs. Catchwords: Doctor on suspension by NSW Medical Board - two complaints laid by the HCCC - First complaint as to doctor's professional misconduct - evidence establishes: doctor's practice below standard - doctor engaged in unethical conduct and contravened conditions to which his registration was then subject - doctor contravened Part 3 of Medical Practice Regulation - doctor guilty of professional misconduct - Second complaint - medical evidence plus doctor's presentation persuades doctor suffers an impaired intellectual and cognitive functioning - Doctor's name be removed from the register of medical practitioners - doctor not apply for re-registration for three years - Costs - principles applicable - costs awarded to complainant. Legislation Cited: Health Care Complaints Act 1993 (NSW) s 39(2); s 90B(3) Medical Practice Act 1992 (NSW) s 51(1) Cases Cited: Latoudis v Casey [1990] 170 CLR 534 OHN v Walton (1995) 36 NSWLR 77 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr J McKenzie (Respondent) Representation: G Furness SC (Complainant) Health Care Complaints Commission (Complainant) DibbsBarker (Respondent) File Number(s): IRC 40042 of 2009 Judgment 1The Health Care Complaints Commission ("the Complainant") brings before the Tribunal two complaints brought following consultation with the New South Wales Medical Board ("the Board") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 51(1) of the Medical Practice Act 1992 ("the Act") against Dr John McKenzie ("the respondent") being a medical practitioner registered under the Act. 2The first complaint alleges, in the following terms, that the respondent: Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act and/or professional misconduct within the meaning of section 37 of the Act in that he has: a. demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or b. engaged in improper or unethical conduct relating to the practice of medicine; and c. contravened conditions to which his registration was then subject; and d. contravened Part 3 of the Medical Practice Regulation 2003. 3The particulars pleaded in relation to the first complaint are lengthy and complex but broadly relate to the respondent: issuing prescriptions for medication for USA patients over the internet being patients with whom he had had no contact; being in possession of certain drugs in contravention of the conditions to which his registration was then subject; ordering and being supplied with certain drugs in circumstances where the possession of Schedule 4 drugs was in contravention of conditions to which his registration was then subject; self administrating certain drugs in contravention of a condition to which his registration was then subject; operating a medical practice from his home; prescribing certain drugs in contravention of the Poisons and Therapeutic Goods Regulation; failing to keep adequate medical records in contravention of Part 3 of the Medical Practice Regulation 2003. 4The second complaint alleges, in the following terms, that the respondent: Suffers from an impairment within the meaning of Section 3 of the Act. In particular: 1. The practitioner suffers from an adjustment disorder with symptoms of depression and anxiety and/or impaired intellectual and cognitive functioning. 5The complainant advanced its case by dealing first with Complaint No. 2. We will first give consideration to the evidence relied upon to establish this complaint but in doing so we must put each complaint in context which requires consideration of Dr McKenzie's prior history. History 6Dr McKenzie has a Bachelor of Medicine and a Bachelor of Surgery from the University of New South Wales (1972), a Diploma in Anaesthetics from London University (1976) and a Primary Fellowship from the College of Surgeons in London (1976). He returned to Australia and worked as a Locum Registrar at the Prince of Wales Hospital until December 1976 and in 1977 worked as a Locum General Practitioner at various practices in Sydney. In 1980 he became a Fellow of the Royal Australian College of General Practitioners. He then practiced generally as a suburban G.P. 7In 1985, Dr McKenzie accidentally dropped a brick on his foot. He could not find any non-prescription painkillers in his house and took a half tablet of a strong narcotic obtained from his doctor's bag. He continued to take the narcotic, increasing the dosage, and became reliant on the drug. He sought help from a psychiatrist who referred him to Dr Stephen Jurd who specialised in drug and alcohol addiction. On Dr Jurd's advice he volunteered to relinquish his Schedule 8 drug licence in November 1986. 8In the late 1980's and early 1990's Dr McKenzie experienced other health problems and some related to drug ingestion. He suffered from constant pain and periods of depression. During this period he was diagnosed as suffering from Bells Palsy and an adrenal insufficiency. As a result of his health related problems, Dr McKenzie became dependent on prescription medications. In view of his drug dependence, from 1992 to 1997 he participated in the NSW Medical Board's Impaired Registrants Programme and was regularly reviewed by a Board. In 1996, his Schedule 8 Authority was restored, with restrictions. He was discharged from the Impaired Registrants Programme in March 1997. 9On 11 December 2000, the Pharmaceutical Services Branch ("PSB") alerted the Board to Dr McKenzie's practice of inappropriately prescribing medication to patients overseas and his obtaining of Schedule 8 drugs. 10In December 2000, Dr McKenzie was suspended from practice by the NSW Medical Board. In May 2001 his suspension was lifted, with conditions. He was again suspended on 28 August 2001 and that suspension was lifted in October 2001, again with conditions. 11Throughout 2002/2003, as a result of further complaints, Dr McKenzie was sent, by the NSW Medical Board, for a psychiatric examination by Dr Bruce Westmore. Dr Westmore assessed Dr McKenzie and recommended: urine drug screening; Dr McKenzie to obtain a treating psychiatrist, Dr McKenzie not work in isolation. The Board and Dr McKenzie accepted these recommendations. Dr McKenzie was required to undertake six monthly reviews by the Board. 12On a review in October 2005, Dr McKenzie revealed to Dr Westmore his involvement in internet prescribing. In October 2005, a Board review reinforced to Dr McKenzie that the internet prescribing practice was inappropriate and contrary to Board Policy. He continued to be reviewed by the Board and underwent random urine testing. 13In January 2006, Dr McKenzie fell into dispute with the Health Insurance Commission. He revealed in evidence any monies owing have been repaid. 14In September 2006, the NSW Medical Board conducted a Performance Assessment of Dr McKenzie. Dr McKenzie was given performance counselling in February 2007 and he admitted to the internet practice throughout 2006. 15By October 2007, Dr McKenzie was complaining not only of the effects of Bells Palsy but stresses suffered re the internet prescribing practices inquiries and his family problems. He was also suffering financial problems. 16On 29 February 2008, the PSB sent a report to the Board concerning the internet prescribing practice and alleging it had continued up to September 2007. 17The Board then determined to initiate these section 66 proceedings. Dr McKenzie was also suspended from medical practice from 19 March 2008. He is still suspended from practice. He has attended before the Board to challenge this suspension on two occasions. Each application has been rejected. The Evidence as to Complaint 2 18The complainant contends Dr McKenzie suffers an adjustment disorder with symptoms of anxiety and depression and/or impaired intellectual and cognitive functioning. We first consider whether the evidence satisfies whether Dr McKenzie suffers impaired intellectual and cognitive function. Medical reports were obtained by the Board both before and after it suspended the doctor from practice on 19 March 2008. 19Neuropsychological testing was conducted by Dr Wayne Reid, a Clinical Neurophysiologist and Clinical Psychologist. Dr Reid concluded, following significant testing, in a report dated 23 July 2008: On neuropsychological assessment Dr McKenzie was found to be of superior intellect however he has significant deficits in his non-verbal intellectual functions compared with his verbal abilities, significant deficits in both his verbal and visual memory, impaired frontal executive functions affecting his planning and organisational abilities, conceptual skills, adaptive functioning and speed and flexibility of thinking. In addition he suffers from symptoms of a major depression. Overall on neuropsychological assessment Dr McKenzie currently presents with significant deficits in his memory and frontal executive skills that would impair his ability to practice medicine. It seems his current cognitive functioning may partly be affected by depression however one gains the impression that he has an underlying neurological impairment that requires further investigation as his deficits are consistent with brain dysfunction affecting those cognitive processes mediated by the temporal and frontal lobes. It is recommended he be referred to a Neurologist for further investigation and if he is to return to General Practice that his practice be supervised. In addition it is recommended he be referred for follow-up neuropsychological assessment in 12 month time. 20Dr W Reid in a follow up report in November 2009 opined: . . . follow up neuropsychological assessment reveals a significant decline in Dr McKenzie's intellectual and cognitive functioning over the last twelve months. In view of the consistent findings of marked impairment in his cognitive abilities I am now of the opinion he now suffers from an impairment in his intellectual and cognitive functioning to the degree that would affect his capacity to function as a medical practitioner. The deterioration in his cognitive functioning cannot be accounted for by depression or his chronic pain alone. It seems that the most likely cause of the deterioration in his cognition is a progressive condition. It is understood that he has been assessed by a neurologist and it remains unclear as to the neurological basis for the deterioration in his neurocognitive functioning. 21Dr Westmore, Forensic Psychiatrist first saw Dr McKenzie back in February 1992. He was referred to re-examine Dr McKenzie by the Board and did so in May 2001. Throughout his difficulties, Dr McKenzie was thereafter examined a number of times by Dr Westmore. By August 2008 , Dr Westmore expressed the view that Dr McKenzie: "does suffer from an impairment that is likely to detrimentally affect his mental capacity to practice medicine". 22There is no up-to-date neuropsychological assessment after 2008 because Dr McKenzie said in evidence he did not want to undergo further such testing. 23Dr McKenzie gave evidence. He appeared at times confused and vague. In answering questions he was rarely direct, was often verbose and at times evasive. While we have no doubt that he always intended to be, and was for a period of time, a good and caring medical practitioner, at present we accept his intellectual and cognitive function appear, on presentation, to be detrimentally affected. 24He stated before us he does not want to practice medicine at this time as he is starting to lose interest. 25The Tribunal must be satisfied as to the matters complained of on the balance of probabilities. In approaching the proof of the complaints, the Tribunal applies the " Briginshaw " test. This test does not mean that some higher test is applicable than that applicable to other matters where proof is to be found on the balance of probabilities. 26In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the court considered the balance of proof where the " Briginshaw test" applies and said at [68]: As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. 27We, therefore, find Dr McKenzie's presentation together with the weight of the medical evidence persuades us Dr McKenzie suffers from impaired intellectual and cognitive function such that he suffers an impairment within the meaning of s 3 of the Act and therefore should have his name removed from the register of medical practitioners. 28While it may not be necessary, given our conclusion to the intellectual and cognitive impairment suffered by Dr McKenzie, we will also give consideration to the first limb of the second complaint which pleads Dr McKenzie suffers from an adjustment disorder with symptoms of depression and anxiety. The medical evidence is up to date on this limb of the complaint and was tendered by Dr McKenzie. 29A pain management specialist, Dr K E Khor opined on 14 June 2011: 2. In relation to Dr McKenzie's use of substances, alcohol has surfaced again. . . . Dr McKenzie had previous issues with opioid dependence and thus opioid prescriptions from the Pain Clinic and his GP are monitored closely. Generally his dose had been kept low and is fairly stable and there is very little evidence of aberrant opioid drug seeking behaviour. However, there is always the propensity to relapse and use other mood enhancing agents such as alcohol. Alcohol had surfaced again during his last review which may be related to stressors and as he seemed to have insight from a brief intervention, this is being monitored at present. . . . 5. Functional state. It is difficult to access his cognitive state with precision in the Pain Clinic. He is always cooperative with good eye contact and spontaneous speech with no obviously abnormal movements. His affect is often irritable and depressed. However, he gives an impression of exhibiting poor judgements, making poor choices, externalising blame and presenting slightly unkempt. Certainly he does not seem to function well, when all of the above factors are operating. These may be consistent with a decline in mental state and I think that Dr Wayne Reid's assessment would shed light on this. 30Dr Ana Singer, Dr McKenzie's GP in her report of 14 June 2011 opined: 2. Current condition Dr McKenzie's general physical condition is mostly stable. There is evidence of progression of his physical problems: spinal deformity, fluctuating back/hips pain, as well as periodic emotional fragility (anxiety and depression) driven by his personal, social and professional difficulties to date. 3. Prognosis generally Dr McKenzie's prognosis is difficult to predict and likely to fluctuate. 4. Specific comment/agreement with a) impairment complaint b) adjustment disorder with symptoms of depression and anxiety and/or impaired intellectual and cognitive functioning. I do not believe that I am qualified to comment on the specific assessments conducted by Dr Wayne Reid. These are based on the evidence of Dr McKenzie's comparative performance in 2008 and 2009. Similarly, I appreciate the legitimacy of Dr Bruce Westmore's assessment. I believe that chronic nature of John's medical conditions, fluctuating depression and recurrent anxiety have significantly and progressively impacted on John's emotional and general well being, as well as on his overall performance. John's unemployment, difficult financial position, apparent loss of status and purpose and poor self esteem continue to haunt him, as well as impact on his overall physical and mental state. 31From these assessments and as well as taking into consideration Dr McKenzie's presentation while giving evidence and accepting his complaints of the pain he suffers from his infirmities related to Bells Palsy, back complaints and the stresses associated with litigation, we are satisfied Dr McKenzie at least presents with symptoms of depression and anxiety. Complaint 1 32As to the Complaint 1, that Dr McKenzie is guilty of unsatisfactory professional conduct and/or professional misconduct, Dr McKenzie made significant admissions as to each particular but took issue with two facts relied upon in the particulars regarding his practice of providing prescriptions for persons overseas with whom he had no consultation (particular 1). We are satisfied at an earlier date Dr McKenzie admitted the level of overseas prescriptions issued could have been around 300 to 400. Dr McKenzie further denied the improper prescription practice continued until September 2007. Written documentation before us containing Dr McKenzie's signature indicated the practice continued into 2007. Dr McKenzie, on sighting the signatures, commented simply it looked like his signature. We are satisfied against all warnings, Dr McKenzie continued this unethical practice of prescribing medication for patients overseas, who did not consult him, into 2007. 33In his Response to Complaint 1, Dr McKenzie said: I admit my conduct demonstrates that my judgment was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. I do not agree that my knowledge or skill was below that standard, but the lack of agreement should not signify any denial of breach of the particulars of the complaint. With the benefit of hindsight, I acknowledge that my actions were unacceptable. I acknowledge that these admissions of the particulars of the complaint lead to an inevitable finding of improper conduct relating to the practice of medicine. I acknowledge that a high ethical standard applies to medical practitioners and that there may also be a finding of unethical conduct. I admit that I contravened conditions to which my registration was subject. I admit that I contravened Part 3 of the Medical Practice Regulation 2003. ... 34In a peer review conducted by a general practitioner, Dr Walid Jamal, on 25 November 2008 to the NSW Medical Board, Dr Jamal invoked strong criticism of Dr McKenzie's practices as outlined in complaint 1: So in summary, I feel that Dr McKenzie is a doctor with a long history of medical and psychological issues. Nevertheless, due to these factors and other financial factors, he became caught up in an unethical and unprofessional practice of overseas prescribing as well as breaching conditions placed upon him by the NSW Medical Board. With regard to this conduct, it is my opinion that he fell significantly below the standards expected of a peer professional, and generally invites my strong criticism for this departure. 35If it were necessary, given our findings that we are satisfied Dr McKenzie suffers such intellectual and cognitive impairment, that his name should be removed from the register of medical practitioner, we are also satisfied Dr McKenzie is guilty of professional misconduct in that his judgement in the practice of medicine was below the standard reasonably expected of a practitioner on an equivalent level of training or experience; unethical conduct relating to the practice of medicine; contravened conditions to which his registration was subject; contravened Part 3 of the Medical Practice Regulations 2003. Costs 36The complainant asks for costs. Costs generally follow the cause. 37Mr Saxton, solicitor for the respondent doctor, submitted each party should bear their own costs. He contended Dr McKenzie suffered financially now he cannot practice; he lives on a disability pension with some income from renting rooms in his own home; he has had to seek legal aid to defend the complaints; his health means he cannot work. 38It is of note the doctor has been suspended and has not practised medicine since 19 March 2008. The complaints were filed in October 2009 and there has been no concession made by Dr McKenzie that removal from the register of medical practitioners was appropriate until the day before the hearing. The Commission therefore had to prepare significant documentation to support the allegations contained in the complaints. While the matter was mentioned on a number of occasions, applications were made by both parties for adjournments given the Commission had to obtain and collate significant documentary evidence to prove the complaints and the doctor sought to obtain legal assistance. 39In Latoudis v Casey [1990] 170 CLR 534, Mason CJ stated the principles to be applied in relation to the awarding of costs as follows (at 542-543): . . . in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott , at p 111. ... Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings. And later (at 544): Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor. The principles enunciated in Latoudis , it has been held, should be applied by Tribunals such as the Medical Tribunal ( OHN v Walton (1995) 36 NSWLR 77). 40We have come to the conclusion Dr McKenzie has brought charges upon himself. His conduct therefore disentitles him to an award of costs in his favour. Orders 1. The respondent's name be removed from the register of Medical Practitioners and he not be permitted to apply for re-registration for a period of 3 years from the date of the order. 2. The respondent pay the complainant's costs. DEPUTY CHAIR: The Honourable Justice T Kavanagh MEMBERS: Dr Victoria Sutton, Dr Judith Mair, PhD, Dr Michael Giuffrida 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: 29 July 2011