Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr John Edwards [2011] NSWMT 10 Hearing dates: 9 August 2011 Decision date: 14 September 2011 Before: Kavanagh J; Dr V De Carvalho; Dr M Walker; Dr J Mair Decision: 1. The Tribunal marks its strong disapproval of Dr Edward's conduct by reprimanding Dr Edwards pursuant to s 61 of the Medical Practice Act . 2. Dr Edward's registration is to be subject to the following conditions: (i) To not prescribe, possess, supply, administer, handle or dispense any drugs of addiction (drugs under Schedule 8 of the New South Wales Poisons List) and not to prescribe any prescribed restricted substances (Schedule 4D drugs or Schedule 4D derivative under Appendix D of the Poisons and Therapeutic Goods Regulation 2002). (ii) To complete within 12 months of the date of this Decision and at his own expense, the distance education course in "Issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Melbourne: (a) By close of business 1 March 2012, he must provide documentary evidence to the Council of his enrolment in the "Issues in General Practice Prescribing" course; and (b) Within two weeks of completing the "Issues in General Practice Prescribing" course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (iii) To participate in and complete within 12 months of the date of this Decision and at his own expense, the course "Dealing with Difficult Doctor-Patient Relationships" conducted by the Cognitive Institute: (a) He is required to supply to the Council a copy of the Institute's Certificate detailing satisfactory completion (or otherwise) within two weeks of its receipt. (iv) Dr Edwards is to nominate a supervisor within 28 days of the date of this Decision (to be approved by the Council) to monitor and review his clinical practice and compliance with Conditions in accordance with Level 2 Supervision as contained in the Council's Guidelines for Supervision. The approved supervisor is to be provided with a copy of the Council's Guidelines and a copy of this Decision. The practitioner is to be responsible for all costs associated with the supervision arrangement. The supervisory arrangement remains in place for 18 months, with the supervision period being extended, if upon consideration of the supervision reports received, the Council deems such extension necessary. The practitioner is to ensure that: (a) he and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council that his nominated supervisor has been approved; (b) at each meeting they address appropriate prescribing practices, clinical outcomes, overall patient care and management and communication skills; (c) at each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council; (d) the supervisor forwards to the Council, initially on a fortnightly basis for the first three months and then subsequently on a monthly basis, a Supervision Report in a format prescribed or approved by the Council; (e) the supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance or if the supervisor relationship ceases; (f) in the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship; (v) Condition 4 is not to apply whilesoever the practitioner confines his practice to the performance of surgery at Eastern Surgical Services or assisting other surgeons at hospitals in the area. (vi) The practitioner authorises and consents to any exchange of information between the Council and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions. (vii) The practitioner is to advise the Council, prior to changing the nature or place of his practice. 3. The Medical Council of NSW is the appropriate review body for the purpose of a review under Part 8 Div 8 of the Health Practitioner Regulation National Law (NSW). 4. The respondent to pay the complainant's costs. Catchwords: Doctor on suspension by NSW Medical Board - complaint laid by the HCCC - Complaint as to doctor's unsatisfactory professional conduct and professional misconduct - evidence establishes: doctor's prescribing practices admitted and failure to keep proper medical records called into question doctor's conduct - conduct not in accordance with relevant standards - doctor contravened Medical Practice Regulations - doctor pleads guilty to unsatisfactory professional conduct and professional misconduct - restriction placed on doctor's practicing certificate by agreement - orders. Legislation Cited: Health Care Complaints Act 1993 (NSW) s 39(2); s 90B(3) Medical Practice Act 1992 (NSW) s 36; 37; s 51(1) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Director-General, Department of Community Services; re Sophie [2008] NSWCA 250 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr J Edwards (Respondent) Representation: V A Hartstein (Complainant) M G Lynch (Respondent) Health Care Complaints Commission (Complainant) Avant (Respondent) File Number(s): MT40022 of 2010 DECISION 1The Health Care Complaints Commission ("the Complainant" or "the HCCC") brings before the Tribunal one complaint 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 Richard Bathurst Edwards ("the respondent") being a medical practitioner registered under the Act. 2The amended 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: i) 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 ii) breached the Medical Practice Regulation 2003 and Medical Practice Regulation 2008 and/or iii) engaged in improper conduct relating to the practice or purported practice of medicine. 3The doctor formally admitted to each of the many particulars relied upon. There were about 70 particulars pleaded in relation to the complaint. They assert the doctor prescribed Schedule 8 and Schedule 4D drugs to drug dependent patients and over prescribed both narcotics and other drugs to patients identified in the particulars as from "A" to "J" (some 10 patients). It is further contended the doctor also kept inadequate records of his consultations and treatments. 4The HCCC was represented by Ms V A Hartstein of counsel and Mr M G Lynch of counsel appeared for Dr Edwards. Much documentation was placed before the Tribunal evidencing the allegations. The doctor tendered a statement and references. 5The details of each complaint are best analysed by Dr I M Chung, qualified by the HCCC as a peer general practitioner. He opined: A s to Patient A: ... Dr Edwards prescribed between 06/09/2007 excessive quantities of Oxycontin, Endone and diazepam to this patient for a prolonged period of time despite recognising the patient as being drug dependant after one month. In the month of June 2008 prescriptions for these drugs were issued on 14 occasions. Fentanyl is a very serious drug choice. This drug is particularly addictive and this patient had a particularly addictive nature. It would appear that he was initially unaware that this patient was on a methadone program. I note that this was a difficult patient with "attitude problems leading to the pain specialist refusing to see him. It was appropriate that Dr Edwards referred this patient to the pain clinic. Given the extent of the prescribing of opioids to this patient, it is of serious concern that Dr Edwards did not apply for an Authority to prescribe these drugs. ... As to Patient B: ... There are aspects of Dr Edward's conduct that could be seen to be appropriate with this patient such as looking up the doctor shopper hotline, contacting the pain management doctor by phone and arranging the methadone program for this patient. However, Dr Edwards prescribed large quantities of Oxycontin and Endone to this patient in spite of his awareness of the patient being a drug dependant person on an opiate treatment program. Indeed Dr Edwards played a role in arranging this treatment for him. It appears that Dr Edwards failed to obtain an Authority to prescribe this opioid in the first instance. Between 28/09/2007 and 05/04/2008 Dr Edwards prescribed Oxycontin and Endone on a continuous basis, 14 separate prescriptions for these two drugs were issued during April 2008. ... A s to Patient C: ... Dr Edwards prescribed MS Contin 100mg on 5 occasions over 5 weeks failing to ascertain that this patient was on the methadone program. This conduct is unsatisfactory. Fortunately Dr Edwards took the appropriate action of refusing to issue further prescriptions for this drug after one month. I am moderately critical of Or Edwards conduct. His conduct attracts my moderate disapproval and, in my opinion, his conduct would attract the moderate disapproval of my peers of good repute and conduct and who are of a similar level of training,, knowledge and experience as Dr Edwards. A s to Patient D: ... Dr Edwards prescribed large quantities of opiates at the same time prescribing benzodiazepines in the form of Antenex and Murelax over a two months period without eliciting that the patient was on an opiate treatment program. In addition Dr Edwards failed to obtain an Authority to prescribe the opiate. It is quite apparent that this was an aggressive and difficult patient. It appears that Dr Edwards did cease prescribing the Valium when he discovered that the patient was giving the Valium to his partner. Despite this, I am concerned that Dr Edwards failed to elicit that this patient was on an opiate treatment program before he prescribed the opiates, that he prescribed large quantities of these drugs and that he took some time to deal with this patient appropriately. ... A s to Patient E: ... Dr Edwards appears to have issued prescriptions for Oxycontin as well diazepam and Panadeine forte from 22/01/2007 to 15/09/2008 when he knew or should have known that he was an addictive person. He did attempt to refer the patient for specialist care without much help forthcoming. Nonetheless Dr Edwards continued to prescribe large quantities of addictive substances without any particular long term plan despite regarding this patient as "his most major problem". ... A s to Patient F: ... Dr Edwards should have known that this patient was drug dependent and yet he prescribed a high dose of Oxycontin to her on two occasions. I am moderately critical of Dr Edwards conduct. His conduct attracts my moderate disapproval and, in my opinion, his conduct would attract the moderate disapproval of my peers of good repute and conduct and who are of a similar level of training, knowledge and experience as Dr Edwards. A s to Patient G: ... The summary of the history of this patient paints a sad picture. He was clearly in great suffering and needed specialist attention as well as symptom relief. Unfortunately, he received only the latter in large, indeed excessive, quantities without the doctor obtaining an Authority. Long term Pethidine injections is something that is most unusual and specialist confirmation of this approach would be seen to be advisable by most GP's of Dr Edwards level of experience and training. The ultimate outcome was indeed unfortunate. Between 23/09/2006 and 14/11/2007, Dr Edwards prescribed pethidine, Midazolam, Oxycontin, Normison in large quantities and continuously. In November 2007, 14 separate prescriptions of these drugs were issued by Dr Edwards to this patient. I am severely critical of Dr Edwards conduct. His conduct attracts my severe disapproval and, in my opinion, his conduct would attract the severe disapproval of my peers of good repute and conduct and who are of a similar level of training, knowledge and experience as Dr Edwards. A s to Patient H: ... Dr Edwards prescribed Oxycontin, morphine and pethidine from sometime in 2006 to 12/09/2009 in large quantities for a prolonged period. He clearly believed this patient to have an addictive problem in that he attempted to stop prescribing for this patient (in refusing to see the patient on three occasions) yet he continued to prescribe without an Authority. This prescribing was done without any specialist advice or without any management plan in place. The summary of history is confusing in its statement that Dr Edwards "prescribed only 80mg Oxycontin bd" when the drug schedule provided, lists pethidine and morphine as well. I am severely critical of Dr Edwards conduct. His conduct attracts my severe disapproval and, in my opinion, his conduct would attract the severe disapproval of my peers of good repute and conduct and who are of a similar level of knowledge and experience as Dr Edwards. A s to Patient I: ... Dr Edwards prescribed Oxycontin Endone, pethidine and Mersyndol forte for this patient from 01/0/'2006 to14/09/2008 without an Authority. Allegedly, Dr Edwards had a plan in mind and he made attempts to refer the patient to specialist, there was no clear management strategy. I am severely critical of Dr Edwards conduct. His conduct attracts my severe disapproval and, in my opinion, his conduct would attract the severe disapproval of my peers of good repute and conduct and who are of a similar level of knowledge and experience as Dr Edwards. A s to Patient J: ... Dr Edwards prescribed Oxycontin at the rate of 5 prescriptions per month of 20 X 80 mg Oxycontin for this patient for most of the period from 5/08/2007 to 15/09/2008. Dr Edwards seemed to see this patient as being different and in control of his drug use. There does not appear that there was any specialist involved with the management of this patient. I am severely critical of Dr Edwards conduct. His conduct attracts my severe disapproval and, in my opinion, his conduct would attract the severe disapproval of my peers of good repute and conduct and who are of a similar level of knowledge and experience as Dr Edwards. 6Dr Edwards admitted to all particulars. 7Dr Edwards is a general practitioner who has practised at three locations. Between 1982 and 1995, Dr Edwards worked as a general practitioner/surgeon in practice at Kempsey Medical Centre, Kempsey, New South Wales. 8Between 1996 and April 2006, he practised solely doing surgical procedures at Eastern Surgical Services, Newcastle, New South Wales. At Eastern Surgical Services, Dr Edwards' primary undertaking was general surgery including removing skin cancers, in-grown toe nails and various cysts. The doctor opines he enjoys the surgical aspects of his work much more than general practice. 9However, the doctor started to supplement his surgical practice income when he commenced working on a part-time basis as a general practitioner at Charlestown Medical and Dental Centre (managed by Primary Health Care Limited) beginning in April 2006. Until that time, he had been largely unfamiliar with drug seeking patients or patients seeking Schedule 8 and Schedule 4D medications. He gave evidence that in all the years at Kempsey he did not see patients with these problems. 10When the doctor commenced at the Charlestown Medical and Dental Practice, it was the first time he had worked in an urban community medical practice as a general practitioner. Prior to the Pharmaceutical Services Board ("PSB") investigation into his prescribing practises, Dr Edwards saw a variable number of patients (up to approximately 30 per day) in this practice. 11Having made admissions as to the facts, and the proper concession he made therein that he was guilty of both unsatisfactory professional conduct and professional misconduct, the doctor then gave evidence and relied upon a statement tendered before the Tribunal. 12Ms Hartstein, for the HCCC, cross examined Dr Edwards. She examined his prescribing practices related to each patient. She put directly to him that he had, in relation to some of the named patients, been aware of their drug addiction but nonetheless continued to prescribe drugs on the restricted list, namely Schedule 8 and Schedule 4D drugs, and this was sometimes against other doctors' written warnings. The doctor conceded as to this fact. 13Further, while Dr Edwards had denied to the PSB inquiry that, in his prescribing record, there was an indication of unethical behaviour, he recanted this view before the Tribunal. Dr Edwards has accepted now that his practises were in breach of the requisite standards for a medical practitioner of his standing. When asked why his view of his own practises and procedures have now changed he revealed he had, following the negative finding of the PSB investigation, reviewed his patients' records, sought counsel from other medical practitioners, and examined the record/schedule of medications he prescribed to the named patients (A-J) and the quantities therein. In this context he conceded that he now understood his conduct was unprofessional, was misconduct and was not ethical conduct. 14Dr Edwards was also questioned by Ms Hartstein at length as to how he perceived the nature of his practice in the future. The doctor revealed he had no intention of resuming general practice, even at the limited level of 20 patients per day with the restriction as to prescribing Schedule 8 and Schedule 4D drugs, which restrictions had been placed upon him by the Medical Board since September 2009. 15Dr Edwards revealed he loved performing the surgical work he is allowed to perform as a general practitioner and plans, in the future, to continue to perform minor surgical work at Eastern Surgical Services, saying: 11. My individual surgical practice consists only of minor procedures requiring local anaesthetic. Such procedures might include excision of cysts or BCCS, removal of toe nails and the like. I do not require access to any of the medications for which I have relinquished my prescribing authority in order to perform these procedures. In surgical practice I will see up to a maximum of 20 patients per day, including a mix of consults and surgeries. Once or twice a fortnight I will assist Dr Tim Wright with his laparoscopic abdominal surgery at Eastern Surgical Services. 12. Eastern Surgical Services will typically bill the patient and I will take a 40% share of the fee. People with government healthcare cards are bulkbilled; most other patients are private. For instance, a vasectomy will incur a $400.00 fee. 16As to his present attitude, he revealed it is his current intention: 16. . . . to confine my medical practice to only undertaking surgical work at Eastern Surgical Services or assisting my colleagues with surgical cases at Private Hospitals including but not limited to Lingard Private Hospital or Warners Bay Private Hospital. In effect, the doctor, having reviewed his procedures and having taken a break from medical practice from July to August this year, has determined to give up his general practice at Charlestown. 17Dr Chung, the peer review doctor, in his analysis of the doctor's prescribing practices, succinctly summed up the circumstance revealed in the evidence as follows: Most of this patient group appeared to have genuine complex medical problems requiring complex medical management that included pain management, psychiatric consultation and drug and alcohol management. Dr Edwards appeared to have been aware of the complex needs yet in part of the time either ignored or he was unaware of the fact that the patient was on opiate treatment programs. He often prescribed without an Authority to prescribe these drugs when he knew or should have known of the requirement, his excuse being that it was an "oversight" in not pursuing this course of proper professional conduct. On occasion he did seek to obtain specialist referral and referred patients to the pain clinic. It appears that the result of these were sometimes not as helpful as needed. On one occasion, he appears to have been part of the process of enrolling a patient onto the methadone program. When he was finally confronted by the PSB officers, he seemed genuinely relieved to relinquish his Authority to prescribe S8 drugs. In my fairly extensive experience of reviewing the conduct of doctors who prescribed S8 and S4 drugs inappropriately, Dr Edwards would not fit into the most serious category. I found Dr Edward's conduct at times perplexing but most of the time unsatisfactory. ... The Tribunal has the same view of these breaches. The doctor has practised medicine from 1982 and has an unblemished record. Dr Chung found his recent behaviour "perplexing". So does the Tribunal. It appears the doctor was afflicted with personal and financial problems in the period, some of which related to his relationship with another doctor partner who, in the middle of the troubles, died. Dr Edwards went bankrupt. He has traded out all of his debts. Nonetheless, whatever circumstance triggered his conduct, it can only explain, not excuse, the doctor's behaviour. He has come before the Tribunal with the appropriate expression of remorse. 18In a later report of 19 August 2009, Dr Chung also opined, generally, the following as to Dr Edwards' treatment of each patient: Dr Edward's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience applicable at the time of the conduct. Dr Edward's departure from the statutory requirements stated in the standards listed above for medical practitioners in relation to the documentation of their treatment of patients invites my severe criticism. This conduct attracts my strong disapproval and in my opinion, it would attract the strong disapproval of my peers of an equivalent level of training or experience reasonably expected of a practitioner such as Dr Edwards at the time of the conduct. 19In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the court considered the balance of proof where the "Briginshaw test" ( Briginshaw v Briginshaw (1938) 60 CLR 336) 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. 20We find the evidence establishes Dr Edwards is guilty of unsatisfactory professional conduct within the meaning of s 36 of the Act and professional misconduct within the meaning of s 37 of the Act, in that he has: demonstrated that the knowledge, skill and judgement possessed and care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; breached the Medical Practice Regulation 2003 and Medical Practice Regulation 2008; and, engaged in improper conduct relating to the practice of medicine. 21Some matters were of concern to the Tribunal given the doctor indicated he wanted to continue to perform surgical procedures as a qualified but still general practitioner, perhaps best referred to as a general practice surgeon. 22After hearing Dr Edward's evidence, particularly of his intention regarding future practice, the HCCC sought a short adjournment to submit to the Tribunal draft orders appropriate in the circumstance that the Tribunal accepts the doctor's evidence as to his plan for the future use of his medical qualifications and skills. 23There was some discussion between the Tribunal and counsel as to how any restrictions of the doctor's practice could be monitored. The parties sensibly agreed on amending the proposed orders to reflect comments made by the Tribunal. 24Given the doctor's (perhaps belated) admission of the complaint, we nonetheless accept those admissions are genuine. In the context of the doctor's agreement that when he returns to practice in the surgical area (he has had a break since July 2011), that return will be in accordance with conditions imposed. 25Counsel for the HCCC sought an order for costs. Counsel for Dr Edwards does not make any submissions. Orders 1. The Tribunal marks its strong disapproval of Dr Edward's conduct by reprimanding Dr Edwards pursuant to s 61 of the Medical Practice Act . 2. Dr Edward's registration is to be subject to the following conditions: (i) To not prescribe, possess, supply, administer, handle or dispense any drugs of addiction (drugs under Schedule 8 of the New South Wales Poisons List) and not to prescribe any prescribed restricted substances (Schedule 4D drugs or Schedule 4D derivative under Appendix D of the Poisons and Therapeutic Goods Regulation 2002). (ii) To complete within 12 months of the date of this Decision and at his own expense, the distance education course in "Issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Melbourne: (a) By close of business 1 March 2012, he must provide documentary evidence to the Council of his enrolment in the "Issues in General Practice Prescribing" course; and (b) Within two weeks of completing the "Issues in General Practice Prescribing" course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (iii) To participate in and complete within 12 months of the date of this Decision and at his own expense, the course "Dealing with Difficult Doctor-Patient Relationships" conducted by the Cognitive Institute: (a) He is required to supply to the Council a copy of the Institute's Certificate detailing satisfactory completion (or otherwise) within two weeks of its receipt. (iv) Dr Edwards is to nominate a supervisor within 28 days of the date of this Decision (to be approved by the Council) to monitor and review his clinical practice and compliance with Conditions in accordance with Level 2 Supervision as contained in the Council's Guidelines for Supervision. The approved supervisor is to be provided with a copy of the Council's Guidelines and a copy of this Decision. The practitioner is to be responsible for all costs associated with the supervision arrangement. The supervisory arrangement remains in place for 18 months, with the supervision period being extended, if upon consideration of the supervision reports received, the Council deems such extension necessary. The practitioner is to ensure that: (a) he and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council that his nominated supervisor has been approved; (b) at each meeting they address appropriate prescribing practices, clinical outcomes, overall patient care and management and communication skills; (c) at each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council; (d) the supervisor forwards to the Council, initially on a fortnightly basis for the first three months and then subsequently on a monthly basis, a Supervision Report in a format prescribed or approved by the Council; (e) the supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance or if the supervisor relationship ceases; (f) in the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship; (v) Condition 4 is not to apply whilesoever the practitioner confines his practice to the performance of surgery at Eastern Surgical Services or assisting other surgeons at hospitals in the area. (vi) The practitioner authorises and consents to any exchange of information between the Council and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions. (vii) The practitioner is to advise the Council, prior to changing the nature or place of his practice. 3. The Medical Council of NSW is the appropriate review body for the purpose of a review under Part 8 Div 8 of the Health Practitioner Regulation National Law (NSW). 4. The respondent to pay the complainant's costs. 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: 15 September 2011