Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Annette Dao Quynh Do [2013] NSWMT 7 Hearing dates: 29, 30, 31 October 2012; 17, 18, 19 December 2012; and, 19 March 2013 Decision date: 29 April 2013 Before: Colefax SC DCJ; Dr. M. Giuffrida; Dr. M. Walker; Ms. J. Houen Decision: 1. Complaints (x 2) of professional misconduct proved. 2. Further hearing for appropriate protective orders fixed for 7 June 2013. Catchwords: Medical practitioner - professional misconduct - onus of proof - requirement for re-hearing if Deputy Chairperson retires before final orders - obligation of full disclosure by witness to the Tribunal, especially witnesses other than the respondent. Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 Medical Practice Regulation 2002 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Palmer v Dolman [2005] NSWCA 361 Director General of Department of Community Services, Re Sophie [2008] NSWCA 250 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Annette Dao Quynh Do (Respondent) Representation: Mr. C. O'Donnell (Complainant) Ms. F. Westwood (instructed by the Health Care Complaints Commission) (Complainant) Dr A. Do (self represented) (Respondent) File Number(s): 4005 of 2011 Publication restriction: No Reasons for decision Introduction 1Dr Annette Dao Quynh Do was born in New Zealand in 1968. 2In 1995 she obtained bachelor degrees in Medicine and Surgery from the University of Auckland. 3Also in 1995 Dr Do was first granted conditional registration as a medical practitioner in New South Wales. With some short exceptions she was a registered medical practitioner in this State continuously until 22 January 2009 when her name was removed from the Register because she had not paid her annual registration fee. 4During the time of her registration Dr Do was not subject to any practising conditions. 5In 2005 Dr Do met Mr Daniel Siebler (who was then living in Melbourne) over the internet (not a dating site) and a relationship through that medium commenced. At that time Dr Do was 37 years old and Mr Siebler 27 years old. 6On 10 June 2006 Mr Siebler moved to Sydney to live with Dr Do in a de facto relationship. 7On 29 July 2006 Mr Siebler started to develop severe debilitating headaches and on 3 August 2006 Dr Do made a diagnosis of "cluster headaches". 8On 18 June 2008 Mr Siebler died from a self-administered overdose of amitriptyline. 9An inquest was subsequently held into Mr Siebler's death. 10As a result of that inquest, the Health Care Complaints Commission ("the Commission") undertook an investigation into the conduct of Dr Do. 11This investigation resulted in the Commission filing a Notice of Complaint with this Tribunal on 30 November 2010. An Amended Complaint was filed on 21 March 2012. 12On 26 and 27 March 2012 the Tribunal conducted an inquiry and at the conclusion of that inquiry reserved its findings in relation to the Amended Complaint. 13On 10 May 2012 the Tribunal delivered its findings to the effect that it was satisfied that the particulars of each of the 2 complaints in the Amended Complaint had been made out. The Tribunal then adjourned in order to conduct a further hearing as to what appropriate protective orders ought to be made in the light of those findings. 14The date for that further hearing was fixed for 16 July 2012. 15Before 16 July 2012, however, the Deputy Chairperson who had presided at the earlier Tribunal hearing retired and resigned her judicial commission and consequently her Honour ceased to be a qualified person to be a Deputy Chairperson of this Tribunal. 16On 16 July 2012 another Deputy Chairperson of the Tribunal, Colefax SC DCJ, delivered a decision in which he held that, by reason of section 165C of the Health Practitioner Regulation National Law (NSW) ("the National Law"), the retirement of the previous Deputy Chairperson effectively terminated that previous inquiry and that a differently constituted Tribunal would be appointed to consider ab initio the allegations made in the Amended Complaint. 17The further hearing of the Amended Complaint commenced on Monday 29 October 2012 before this presently constituted Tribunal. None of the members of this Tribunal were members of the earlier Tribunal. 18In that hearing, the Commission was represented by Mr O'Donnell of counsel. Dr Do appeared for herself unrepresented. Apparently (and somewhat ironically) her professional indemnity insurer declined to indemnify her because Dr Do contended (contrary to one of the allegations made against her in the Amended Complaint) that she was not the treating practitioner for Mr Siebler. 19The hearing continued up to and including 31 October 2012 when it was adjourned to enable the evidence of Dr Gronow to be obtained. Dr Gronow had not previously been interviewed in connection with the Amended Complaint. The significance of his evidence will be obvious later in these reasons. The hearing resumed for a further three days on 17 December 2012. The final hearing day was on 19 March 2013. 20Dr Do was not present for that final hearing day. However, before that day she had been served with the detailed written submissions of the Commission; and had herself filed and served detailed written submissions. 21At the conclusion of the hearing the Tribunal reserved its decision. The Tribunal also directed the Registrar to provide a copy of the transcript of the final day of hearing to Dr Do. 22After the Tribunal reserved its decision, Dr Do on two separate occasions sought to file further evidence and submissions. The Tribunal refused leave for her to do so on each such occasion, having regard to the well established principles of finality of litigation. The Nature of the Complaint: 23The Amended Complaint contains two discrete complaints. 24Complaint 1 in the Amended Complaint alleges that Dr Do has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law. 25In general terms the complaint alleges that Dr Do: (a) has demonstrated that her knowledge, skill and judgment in the practice of medicine is significantly below the standard reasonably to be expected of a practitioner of an equivalent level of training or experience; (b) has contravened a provision or provisions of the Medical Practice Regulation 2003; and (c) has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 26Complaint 2 alleges that Dr Do has been guilty of professional misconduct within the meaning of section 139E of the National Law. 27In relation to both complaints (or either of them), the Commission contends that Dr Do's registration should be either suspended or cancelled. 28The particulars given for the two complaints are identical and (slightly recast by us) are as follows: (a) Whilst a general practitioner in private practice in New South Wales she commenced a de facto relationship with Mr Siebler and that whilst in that de facto relationship she was his primary medical provider. (b) In her capacity as Mr Siebler's primary medical provider, Dr Do regularly prescribed medication for Mr Siebler, including morphine, pethidine, amitriptyline, other injectable pain relief, psychotropic medications and various other medications and regularly injected him with such medications. It is the first three drugs that are of particular concern to the Commission. In this regard, morphine and pethidine are drugs of addiction as defined by the Poisons and Therapeutic Goods Act 1966. Many of the other medications are prescribed restricted substances as defined by the Poisons and Therapeutic Goods Regulation 2002. (c) Further, she failed to maintain adequate records of consultations and services provided to Mr Siebler, including records of prescriptions, particularly of prescribed restricted substances including drugs of addiction. (d) Finally, she prescribed those drugs of addiction without proper authority and in circumstances where Dr Do was, or ought to have been, of the opinion that Mr Siebler was a drug-dependent person. 29Dr Do disputes that she has been guilty of unsatisfactory professional conduct or professional misconduct. Specifically, in relation to the particulars of the two complaints, she: (a) admits that she was in a de facto relationship with Mr Siebler, but denies that she was his primary medical provider (viz treating general practitioner); (b) contends that the writing of the prescriptions and the administration of (inter alia) morphine, pethidine and amitriptyline by her was done either with the express or implicit knowledge and approval of a number of specialists who really were Mr Siebler's primary medical providers - she was just a facilitator; but (c) admits that she failed to maintain adequate records of prescriptions which she wrote for Mr Siebler, including drugs of addiction, but she says there were extenuating circumstances for that. The Legislative Framework: 30These proceedings are brought under Part 8 of the National Law. 31Section 139B(1)(a) of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as, including: "Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner, in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 32Section 139E of the National Law defines "professional misconduct" as: "(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; 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 or cancellation of the practitioner's registration." 33The Commission has the onus of proving the matters alleged in the Amended Complaint. The standard of proof is the civil standard. However, because of the seriousness of the allegations and the gravity of their consequences, the civil standard is that informed by the principles articulated in Briginshaw v Briginshaw (1938) 60 CLR 336. See also Palmer v Dolman [2005] NSWCA 361; and Director General of Department of Community Services, Re Sophie [2008] NSWCA 250. The Factual Background: 34In order to place the Amended Complaint in a proper factual context it is necessary to expand upon the brief facts set out in the introductory section of this decision. 35Before doing so, it is helpful to say something about "cluster headaches". They were described in the hearing by Professor Paul Spira, a consultant neurologist who specialises in this condition: "... [A] cluster headache is named cluster because of the fact that it arrives in packets which in a normal cluster patient will go on for something like about six to eight weeks, during which time the individual suffers anywhere between two and six headaches a day. Each one of them excruciating in its severity. And each one of them is subsiding within something like 30 to 90 minutes ... [That] cluster will go on ... for about six to eight weeks in a normal cluster case, during which time patients go through hell. There's no way of describing this pain; it has to be one of the worst pains imaginable. I've seen grown men literally beating their head against a wall for relief because they find that a relief. The pain of hitting your head helps, excursion (sic) helps to some extent, and these people never lie in bed, they can't keep still, they're restless in pain, and once you've seen cluster, you never want to witness it, let alone experience it. Each cluster patient is scared of the next headache, and they know that their in for two or three, or four in a 24 hour cycle." (T32) In addition, Dr Do tendered a CD (exhibit 4) which showed three people (including Mr Siebler) suffering cluster headaches. 36As we have said, on 29 July 2006 Mr Siebler started to develop severe debilitating daily headaches and on 3 August 2006 Dr Do made a diagnosis of "cluster headaches". Notwithstanding the two dates to which we have just referred, Dr Do wrote two prescriptions for intramuscular injections of pethidine which were dispensed on 28 and 31 July 2006 - each for 5 ampoules. The date on which each was prescribed is unknown but it must obviously have been written on or before the date on which it was dispensed. It is not necessary for us to resolve this anomaly - not least because it was not put to Dr Do in cross-examination or otherwise. However, because of the importance which we attribute to the prescriptions written by Dr Do and dispensed for Mr Siebler, as the history will reveal, we take the opportunity of here making the following observations. First, prescriptions are usually written with an intention that they will be dispensed - and the drugs so dispensed will be consumed. There is no reason for us to believe that, with respect to the prescriptions to which we refer in these reasons, Dr Do had any other expectation. Nor is there any reason for us to believe that most, if not all, of the dispensed drugs were not consumed by Mr Siebler. Our conclusion in this regard is reinforced by the fact Dr Do was in serious financial difficulties and Mr Siebler was largely, if not totally, financially dependent upon her. It is unlikely (to say the least) that Dr Do would have incurred the expense of paying for significant quantities of drugs, even those on the PBS, unless she intended that they be consumed. 37On 4 August 2006 Mr Siebler went to the Emergency Section of the Blacktown Hospital. The next day (5 August) he and Dr Do attended upon Dr Tang, a general practitioner. Dr Tang apparently told Mr Siebler and Dr Do that he was unfamiliar with, and therefore reluctant to treat, cluster headaches. (There was also a further consultation with Dr Tang on 19 August 2006, but nothing of further significance arises from that consultation - we have noted it, somewhat out of chronological order, simply for completeness). 38On 7 August 2006 Dr Do wrote a further prescription of 5 ampoules of intramuscular injections of pethidine for Mr Siebler which was dispensed on that date. It is to be noted, however, given Dr Do's contention that she was not Mr Siebler's primary medical practitioner, that by this date she had written three prescriptions for pethidine without any specialist intervention or advice. 39On 9 August 2006 Mr Siebler and Dr Do had a consultation with Dr Grant Walker, a consultant neurologist. Dr Walker was the first of seven specialists consulted in the relevant period by Mr Siebler at the request of Dr Do. 40At the commencement of the consultation Dr Do handed a referral letter to Dr Walker. The letter is not in evidence - Dr Walker did not apparently keep the original and Dr Do did not keep a copy. Dr Do submitted that Dr Walker had deliberately destroyed the original letter. There is no plausible reason why Dr Walker would do so. We reject that submission. 41It is contended by Dr Do that this referral letter included a disclosure that she was in a personal relationship with Mr Siebler. Dr Walker did not recall the letter containing that disclosure. Further, he said that if he had been aware of it, he would have strongly counselled Dr Do against being the treating general practitioner. It is notable however that in later consultations with other specialists Dr Do did expressly reveal her relationship with Mr Siebler. Accordingly, and notwithstanding Dr Walker's lack of recollection on the topic, the Tribunal is not satisfied that Dr Do did not reveal her personal relationship with Mr Siebler to Dr Walker. 42Dr Walker took a history of left retro-orbital headaches. In a written report to Dr Do dated 9 August 2006, he diagnosed Mr Siebler as having a combination of "true cluster headache with super-imposed abnormal illness behaviour". He noted that Dr Do had treated Mr Siebler, amongst other things, with "significant analgesia". The reference to "significant analgesia" was intended by him to be a reference to pethidine. He recommended treatment with "Isoptin" (verapamil) or "Deseril" (methysergide) for a two month period as well as "Imigran" (sumatriptan) and/or oxygen "in the short term". 43Significantly, in his report Dr Walker stated that Mr Siebler "will almost certainly require analgesia [which Dr Walker in evidence said he intended to mean pethidine], but given his abnormal illness behaviour, I am not sure how one can possibly monitor that, apart from being very careful not to get into a situation of medium term Pethidine addiction ...". (emphasis added) 44Dr Walker in his evidence before the Tribunal accepted that he told Dr Do in this consultation (consistently with his subsequent letter) that pethidine would be an appropriate medication "in the short term" - by which he told the Tribunal that he meant about 3-4 weeks. It is not clear that that time frame was expressly provided to Dr Do in the consultation. Dr Walker's evidence was that he told her "several weeks at most" - although that term was not repeated in the subsequent letter. However, we have no reason to doubt the accuracy of Dr Walker's evidence in this regard. Dr Walker was emphatic in his evidence that at no time either in this consultation, or in the few telephone conversations thereafter, was there any reference by either him or Dr Do to morphine being used to treat Mr Siebler. Again, we have no reason to doubt the accuracy of Dr Walker's evidence in this regard. 45In our opinion, at the conclusion of this consultation, it would have been reasonable for Dr Do to conclude that Dr Walker was satisfied that short-term administration of pethidine (i.e. several weeks "at most" - emphasis added) was an available treatment option (with some risk) and that he had expressed no disquiet to Dr Do about treating her own partner in this respect. 46Dr Walker did not see Mr Siebler again, although he did provide a copy of the report which he wrote to Dr Do to the Blacktown Hospital. 47On 10 August 2006 Dr Do wrote two prescriptions for Mr Siebler. The first of those prescriptions was dispensed on that date and was for 10 ampoules of intramuscular injections of pethidine. The second prescription was dispensed on 14 August 2006 and was for a quantity of tablets of morphine. Dr Walker had not made any reference to morphine use. As with pethidine, Dr Do decided to use this drug herself. 48On 14 August 2006 Dr Do wrote a prescription for Mr Siebler for 10 ampoules of intramuscular injections of pethidine. This prescription was dispensed on 15 August 2006. 49Further, on 15 August 2006 Dr Do wrote three more prescriptions for Mr Siebler. The first was also dispensed on that day. It was for 10 further ampoules of injectable pethidine. The second was dispensed on 16 August 2006. This was for 10 ampoules of injectable morphine. The third was dispensed on 17 August 2006. It was for 50 ampoules of injectable morphine. 50At some point after the consultation with Dr Walker, but before 7 September 2006, Dr Do "contacted" Dr Gronow of the Sydney Pain Management Clinic (probably informally by telephone - there is no note in the clinic's records) who apparently suggested medicating Mr Siebler with "Lyrica" (pregabalin). This medication was not effective (according to Dr Do) and consequently Dr Do arranged for Mr Siebler to be examined by Professor Spira on 7 September 2006. 51In preparation for the examination by Professor Spira, Dr Do completed a detailed referral letter of six pages in length dated 7 September 2006. A number of things should be noted about the contents of that letter. 52First, it disclosed that Mr Siebler was Dr Do's "partner". 53Secondly, it recorded that Dr Do had made a diagnosis of "cluster headache". 54Thirdly, it recorded that she had initially prescribed "Tramal" (tramadol) and then morphine and pethidine injections (this was referred to six times in the letter - two references were made on the second page, the third was made on the third page, the fourth and fifth on the fourth page and the sixth on the sixth page). 55Fourthly, it recorded that a few days after Mr Siebler saw Dr Walker on 9 August 2006 his "... condition got worse, the attacks increased to 6-8 per day all requiring morphine or pethidine to stop the pain" (emphasis added). 56Fifthly, it stated that because of those injections of narcotics Mr Siebler had developed a dependency for them, which Dr Do was "weaning" him off. (We note that this "dependency" - or addiction, the distinction between the two being presently irrelevant - was precisely what Dr Walker had warned of four weeks previously). 57Notwithstanding that Dr Do had prepared the detailed letter of referral, Professor Spira said in his evidence that he did not fully read it in the consultation. He accepted in cross-examination that he read "maybe through half of it" (T40:35). If he intended that evidence to be literally true, Professor Spira must therefore have read at least the second page - which included the passage quoted at [55] above - and possibly the third page. Professor Spira further said that as Dr Do, in her capacity as the patient's general practitioner (as he understood it), was present at the consultation he would take an oral history from her and Mr Siebler. Dr Do contends, but Professor Spira in his evidence expressly and firmly denied, that in that consultation reference was orally made by her to the fact that she was prescribing morphine and pethidine. Whether or not it was orally referred to by her, there is no doubt that it was revealed in detail in the letter of referral. In his evidence before the Tribunal, Professor Spira also said that he had not read the letter after the consultation. Further in that evidence, however, Professor Spira accepted that Dr Do might reasonably have expected him to have done so; and he apologised to her for not doing so. 58We noted at [55] above a particular passage from the letter of referral. In our view that sentence is unambiguous. In cross-examination Dr Do denied that that sentence was factually correct - notwithstanding that it was written by her. It is however consistent with the history subsequently given by Dr Do to Dr Gronow (to which we refer at [70] below). Moreover, it is consistent with contemporaneous pharmacy records and which are the basis for our findings at [47] to [49] above. Bearing in mind the standard of proof required by Briginshaw v Briginshaw, we are satisfied that the history in the letter was correctly recorded by Dr Do. 59At the conclusion of the consultation Professor Spira asked Dr Do to prepare a record of the dates on which Mr Siebler subsequently had these problematic headaches and the duration of them. A further consultation was fixed for 15 September 2006. 60On 15 September 2006 Professor Spira had that second consultation with Mr Siebler and Dr Do. Amongst other things, Dr Do provided Professor Spira with the requested handwritten schedule. It was a simple one-page document. On it Dr Do clearly recorded that on 9 and 10 September she had treated Mr Siebler with morphine. In his evidence to this Tribunal, Professor Spira said that he had not read that part of that document. 61Following this second consultation, Professor Spira wrote a letter to Dr Do dated 15 September 2006. In it he expressed doubt as to whether Mr Siebler was in fact suffering from cluster headache because of "... some of the atypical features ..." noted in his history. Professor Spira raised the possibility that there may be a psychogenic disorder "... which may of course be in association with cluster" (a diagnosis not substantially different from Dr Walker's). There is no reference in that letter to Professor Spira being aware that Dr Do was treating Mr Siebler with morphine or pethidine. Nor does it contain any concern about Dr Do treating her partner in that manner. 62Dr Do did not consult Professor Spira again. 63We noted above that Professor Spira in his evidence denied knowing that Dr Do was treating Mr Siebler with injections of morphine. We find that denial problematic given: (a) the letter of referral - which was at least partially read; (b) the handwritten schedule - which was specifically requested by Professor Spira; (c) the oral evidence of Dr Myers concerning a telephone conversation he had with Professor Spira on 5 December 2006 (see [88] below); and (d) the draft letter prepared by Professor Spira on 11 March 2009 (to which we shall return at the conclusion of these reasons) in which he wrote: "... I was concerned to hear Dr Myers say that Dr Do had continued to give Mr Siebler injections of morphine to deal with what she regarded as cluster headaches." (emphasis added) 64Whether or not Professor Spira was (or ought to have been) aware by this date that Dr Do was prescribing and injecting Mr Siebler with morphine and pethidine, Dr Do could reasonably have believed that he was so aware (and did not disapprove) because of the documents she had handed to him. Further, she could reasonably have believed for the same reason that he, like Dr Walker, made no objection to her involvement in the treatment of her partner in that manner. 65On 16 September 2006 (i.e. the day after the second consultation with Professor Spira) Dr Do wrote a further prescription for Mr Siebler which was dispensed that day. It was for 50 ampoules of injectable morphine. 66On 29 September 2006 Mr Siebler was examined by Dr Kwon, an eye physician and surgeon. He subsequently sent a report to Dr Do dated 5 October 2006 but nothing of significance for the purpose of these reasons arises from that examination or that report - other than that Dr Do sought the advice of such a specialist and that Dr Kwon from his report at least regarded the consultation as a consequence of a formal referral. Any letter of referral to Dr Kwon was not in evidence before the Tribunal. 67The day after the consultation with Dr Kwon (i.e. 30 September 2006), a prescription written by Dr Do for Mr Siebler (the date of the prescription is not known) was dispensed. This was for 10 ampoules of injectable pethidine. 68On 10 October 2006 Dr Do wrote a prescription for Mr Siebler (which was dispensed on 11 October) for a quantity of tablets of morphine. 69On 24 October 2006 Dr Do and Mr Siebler had a formal consultation with Dr Gronow. Dr Gronow is acknowledged to be one of Australia's most senior pain specialists - a fact known to Dr Do. Dr Do had prepared a letter of referral. That letter was not as detailed as the one prepared for Professor Spira but it did reveal that Mr Siebler was Dr Do's partner and that morphine was being used by Dr Do in the treatment of Mr Siebler. 70Two matters regarding that morphine use should be noted. First, Dr Do recorded that Mr Siebler used to have "... at least 2 attacks per day, often 3 or 4, sometimes up to 6 a day, excessive use of triptans had caused rebound headaches and when he does not use any med the attack can last up to 3 hrs with very intense pain needing 30mg to 60mg of Morphine IM to control". Secondly, later in the letter when setting out "Current medications" Dr Do listed, amongst other things, "... Morphine 30 mg IM prn, recently almost daily" (emphasis added). 71In this consultation the following was noted by Dr Gronow: (a) Mr Siebler was being prescribed morphine 15-30 mg intramuscularly after each cluster headache attack; (b) Mr Siebler was living in a de facto relationship with Dr Do; (c) Dr Do and Mr Siebler were advised in the clearest and strongest terms not to use intramuscular opiates and a transfer to Physeptone 5 mg morning and night was recommended. 72On 27 October 2006 Dr Do wrote a further prescription for Mr Siebler which was dispensed on 28 October 2006. This was for 5 ampoules of injectable pethidine. Also on 28 October 2006 a further prescription (the date of which is unknown) for the same amount of injectable morphine was also dispensed. 73Notwithstanding Dr Gronow's firm advice against intramuscular opiate use, Mr Siebler apparently was continuing to have access to such drugs because not only were the medications referred to in the preceding paragraph were prescribed and dispensed but also on 31 October 2006 he overdosed on a combination of intramuscularly injected morphine and "Methadone". This was his first relevant overdose. Dr Do in her evidence denied that this was in fact an overdose. Her denial is contrary to the contemporaneous records of the hospital. We have no doubt that it was in fact such an overdose. The fact of the overdose leads to the unavoidable conclusion that Mr Siebler had ready and unsupervised access to the drugs prescribed for him by Dr Do - notwithstanding her evidence to the contrary. 74On 2 November 2006, and despite the overdose two days earlier, Dr Do wrote a prescription which was dispensed on that date for 50 ampoules of injectable morphine. 75Dr Siebler was reviewed by a psychologist from Dr Gronow's clinic on 7 November 2006 and a physiotherapist from that clinic on 8 November 2006. 76Also on 8 November 2006 Dr Do wrote a prescription which was dispensed on 10 November 2006 for a quantity of tablets of morphine. 77On 14 November 2006 Dr Do wrote two prescriptions which were dispensed on that date. The first was for 5 ampoules of injectable pethidine. The second was for a quantity of tablets of morphine. 78Mr Siebler was supposed to be reviewed by Dr Gronow on 16 November 2006; however, that review did not occur. It would appear that Mr Siebler was in the Blacktown Hospital with a perforated bowel at that time. We note that Dr Gronow's records do not record that he was ever informed of the overdose by Mr Gronow on 31 October - and the persistent contradiction of his earlier express advice. 79On 17 November 2006 Dr Do wrote a prescription which was dispensed on that date for 5 ampoules of injectible pethidine. 80Mr Siebler was reviewed by Dr Gronow on 4 December 2006. Dr Gronow's notes record that he was told at that time that Mr Siebler was taking up to 800 mgs of morphine a day. According to a report dated 26 November 2012 which Dr Gronow prepared for the purposes of this present Inquiry, there was then a long discussion concerning the inappropriate use of opiates by Dr Do for this condition. Dr Gronow recorded, and it is not in dispute, that he recommended that Mr Siebler be admitted to the St John of God Hospital for in-patient detoxification because of his dependency/addiction to those opiates. This recommendation was not acceptable to Mr Siebler because of an apparent phobia which he is said to have had concerning hospitals and doctors. It was therefore agreed that Dr Gronow would provide a program for Dr Do to wean Mr Siebler off opiates. This program involved twenty steps (one step per week) - so that by the end of that period he should have completely ceased using opiates. Of significance, the type of morphine to be administered was not to be (even in part) intramuscular but was to be totally oral (i.e. tablets). 81The program as scheduled and prepared by Dr Gronow assumed a current use of 800 mgs of morphine per day and therefore the starting point for Step 1 was a reduction to 700 mgs per day. Dr Gronow said in his evidence that the current use level was based upon express information provided by Dr Do. 82In the hearing, Dr Do challenged the accuracy of Dr Gronow's evidence concerning the alleged current use by Mr Siebler of opiates as at 4 December. She denied telling Dr Gronow that Mr Siebler was taking 800mg of morphine daily. She said the correct figure was in fact 100mg. Dr Gronow however pointed to his contemporaneous note and also to the starting point of Step 1 of the program (which was given to Dr Do) as confirming the accuracy of that note. By having regard to the letter given to Professor Spira by Dr Do, the experience of Dr Gronow, the critical importance to him of getting the initial current dose correct, his contemporaneous documents, the lack of any immediate adverse reaction by Mr Siebler to Step 1, and the contemporaneous pharmacy records, we find that Dr Do did tell Dr Gronow that Mr Siebler was taking 800mgs of morphine daily. Moreover, if Dr Do had not so informed Dr Gronow, it is extremely unlikely that such an "error" would have been unnoticed by her - the more so because such an error could have had life-threatening consequences to Mr Siebler, a risk of which she would clearly have been alert to notwithstanding her denial in the witness box - yet she made no complaint to Dr Gronow. 83Mr Siebler never saw Dr Gronow again after the consultation on 4 December 2006, even though some appointments were made - they were either cancelled by Mr Siebler or Dr Do; or Mr Siebler just didn't turn up. 84At some point after the last consultation with Dr Gronow, Dr Do said she decided to discontinue using morphine for Mr Siebler but to increase the use of tramadol. Just precisely when that occurred (if it occurred) is not clear on the evidence. But what is important to note is that if it occurred, it was done without any specialist advice. 85One of the symptoms complained of by Mr Siebler during his apparently debilitating headaches was vision impairment. Because Professor Spira could find no neurological cause for that impairment and suspected hysterical blindness, Dr Do arranged for Mr Siebler to be examined on 5 December 2006 by Dr Myers, an ophthalmic surgeon. 86Once again Dr Do prepared a letter of referral (dated 5 December 2006). Surprisingly, there was no reference in it to Dr Gronow or the regime of "reduced" morphine that he had advised just the previous day. It did disclose that Mr Siebler was her partner (in this instance "fiancée") and that she had been treating him with "narcotics painkillers". It further revealed that Professor Spira had been consulted but he could not find a neurological cause for the vision problem and that he (Professor Spira) suspected hysterical blindness. 87During the course of that examination, Dr Do informed Dr Myers that earlier that day she had injected Mr Siebler with morphine. This was of course directly contrary (yet again) to the advice given by Dr Gronow. (During the hearing before this Tribunal it was revealed that in fact Dr Do had injected Mr Siebler whilst in Dr Myers' rooms, but not in front of Dr Myers and without his knowledge. Dr Myers expressed shock in the hearing that that had occurred.) 88After that consultation was concluded but on the same day, a telephone conversation took place between Professor Spira and Dr Myers. This conversation had been initiated by Dr Myers because of his concern about Dr Do not only being the treating practitioner for Mr Siebler (as it at least appeared to him) but also that that treatment involved the administration of morphine by injection. In this conversation Dr Myers recalled Professor Spira acknowledging that he was aware of Dr Do, at an earlier stage, prescribing morphine for Mr Siebler. Professor Spira denied making any such acknowledgment. At the conclusion of this conversation, both Professor Spira and Dr Myers agreed that Dr Do required "serious counselling". Dr Myers agreed to undertake that task because of past associations he had with her. 89On 11 December 2006 Mr Siebler was again reviewed by the physiotherapist and the psychologist at Dr Gronow's clinic. 90On 13 December 2006 Dr Myers had a second consultation with Mr Siebler at which Dr Do was present. At the conclusion of that consultation Dr Myers had a private conversation with Dr Do in which he clearly stated to Dr Do that she should not be Mr Siebler's treating general practitioner. The gist of his clear advice on that occasion was re-stated by him in his evidence. It encapsulates the essence of the Commission's complaints against Dr Do: "... I saw the narcotic as being quite inappropriate and I saw your role, particularly maybe your lack of objectivity in someone with a psychiatric illness, as perhaps leading you to mismanagement." (T152:18) Although Dr Myers could not recall in his evidence her response to that advice, Dr Do, before the Tribunal, asserted that her response was to deny to Dr Myers that she was Mr Siebler's treating practitioner. 91On 26 December 2006 Dr Do wrote a prescription which was dispensed that day for 5 ampoules of injectable morphine. 92On 2 January 2007 Dr Do again wrote a prescription which was dispensed that date for 5 ampoules of injectable morphine. 93On 5 January 2007 a prescription written by Dr Do (the date of which is unknown) was dispensed in respect of 50 ampoules of injectable morphine. 94On 10 January 2007 Dr Do wrote a prescription for 50 tablets of amitriptyline with two repeats. The first prescription was dispensed on 12 January 2007. 95In her evidence before this Tribunal, Dr Do stated that it had been her decision, (as were her original decisions to prescribe pethidine, morphine and tramadol) unassisted by any specialist advice, to commence treating Mr Siebler with amitriptyline (T349). 96Amitriptyline is a tricyclic antidepressant. It is a dangerous psychotropic medication. In her evidence Dr Do acknowledged the dangerous side effects which potentially could occur from high doses of amitriptyline (T350ff). Those side effects include potentially fatal cardiac arrhythmias and coma in overdose. There are also potentially serious adverse interactions with central nervous system depressants which included pethidine and morphine and a specific adverse interaction with tramadol. 97In addition to these matters, we note that Dr Do was aware of the interactions that amitriptyline could have with other medications which Mr Siebler was, from time to time, taking and prescribed by her, including promethazine, morphine, tramadol, olanzapine, carbamazepine, gabapentin and pregabalin - "all of which are potentially interactive in terms that they are psychotropic drugs that work on different neurotransmitters ..." (T379:15). 98On 24 January 2007 the second of the three repeats of amitriptyline that Dr Do wrote on 10 January 2007 was dispensed. 99On 27 January 2007 Dr Do wrote a prescription which was dispensed that date for 5 ampoules of injectable morphine. 100In addition to Dr Myers "counselling" of Dr Do in mid-December 2006, Professor Spira also "counselled" her in a telephone conversation in early February 2007. According to Professor Spira, whose evidence on this topic Dr Do agreed with and we accept, he pointed out in strong terms how inappropriate it was for Dr Do to be medicating her partner with narcotic analgesia. 101On 7 February 2007 Dr Myers wrote to Dr Do in which he concluded that although there may have been an organic cause to Mr Siebler's underlying cluster headaches, there may also have been a significant superimposed psychological/psychiatric component to his functional visual loss - a conclusion broadly shared by both Professor Spira and Dr Walker in the letters of advice which they earlier sent to Dr Do. 102On 15 February 2007 the third of the three repeats of amitriptyline that Dr Do wrote on 10 January 2007 was dispensed. 103On 22 February 2007 a prescription was written by Dr Do for 200 tablets of amitriptyline with four repeats. This prescription, including the four repeats (if all filled) was therefore for a total of 1,000 tablets. The first of these prescriptions was dispensed on 27 February 2007. 104On 9 March 2007 Dr Do and Mr Siebler attended a consultation with Dr Perica, a psychiatrist. At the commencement of the consultation, Dr Do provided Dr Perica with a letter bearing that date. Although the letter revealed that Mr Siebler was "living in defacto relationship", it did not reveal that that relationship was with Dr Do. Apart from the referral letter and some very brief notes made apparently by Dr Perica, there was no evidence before this Tribunal from Dr Perica. 105Significantly, however, in listing "current medications" there was no reference in the letter Dr Do gave to Dr Perica to pethidine or morphine. There was however a reference to "Endep" - viz amitriptyline. In her evidence concerning the involvement with Dr Perica and the use of amitriptyline, Dr Do was asked why she did not reveal to him that in January 2007 she had prescribed morphine and pethidine to Mr Siebler she said: "Because at that stage he was mainly on Tramal, very rarely that he needed something like morphine or pethidine. It wasn't like before when morphine or pethidine was used frequently. It was very rarely that he used them." (emphasis added) 106Dr Do's evidence was that before she and Mr Siebler saw Dr Perica, she had started on a low dosage of amitriptyline and then "slowly worked it up" (T349:10) - and that it was Dr Perica who increased the dosage of amitriptyline "to maximum". This seems at odds with the significant amount of amitriptyline covered by the prescriptions written by Dr Do on 10 January and 22 February 2007. However, there is some support for Dr Do's contention that it was his idea to increase the dosage of amitriptyline in the very brief note which Dr Perica apparently made on 9 March 2007. 107On 12 March 2012 Dr Do wrote a prescription which was dispensed that day for a quantity of tablets of morphine. 108On 19 March 2007 Dr Do wrote a prescription which was dispensed on 20 March for a further quantity of tablets of morphine. 109On 20 March 2007 the first of the four repeats for amitriptyline written by Dr Do on 22 February 2007 was dispensed. 110On 28 March 2007 the second of the four repeats for amitriptyline written by Dr Do on 22 February 2007 was dispensed. 111On 5 April 2007 Dr Do wrote a prescription which was dispensed that day for 5 ampoules of injectable pethidine. 112On 13 April 2007 Dr Do wrote a prescription which was dispensed that day for 5 ampoules of injectable morphine. 113On 16 April 2007 Dr Do wrote a prescription which was dispensed that day for 10 ampoules of injectable pethidine. 114On 30 April 2007 the third of the four repeats for amitriptyline written by Dr Do on 22 February 2007 was dispensed. 115On 1 June 2007 Mr Siebler saw Dr Perica for a second time. 116On 9 August 2007 Mr Siebler was examined by Profession Mitchell, a senior psychiatrist. Professor Mitchell was the seventh and final specialist who saw Mr Siebler at the request of Dr Do. Professor Mitchell was aware that Dr Do was Mr Siebler's partner. Mr Siebler was diagnosed with rapid cycling bipolar disorder. He was prescribed valproate, haloperidol and diazepam. 117On 3 September 2007 the final of the four repeats for amitriptyline written by Dr Do on 22 February 2007 was dispensed. 118On 5 October 2007 a prescription for 200 tablets of amitriptyline was written by Dr Do with two repeats. The prescriptions were dispensed on 8 October and 21 December 2007. 119A second examination with Professor Mitchell had been arranged for 10 October 2007 but Mr Siebler did not attend. 120On 28 October 2007 Mr Siebler was admitted to Blacktown Hospital as a result of an overdose of medication for cluster headaches. This was his second admission to hospital for an overdose of medication dispensed on prescriptions written by Dr Do. Again, this strongly suggests he continued to have ready and unrestricted access to the medications prescribed by Dr Do. 121On 26 February 2008 Dr Do contacted the mental health team at the Blacktown Hospital with concerns about Mr Siebler. 122Between 18 March and 4 April 2008 Mr Siebler was admitted as a psychiatric in-patient where he was on a range of psychiatric medication. 123On 12 June 2008 Mr Siebler was admitted to Blacktown Hospital following a further overdoes of amitriptyline and unknown quantities of valproate and venlafaxine. He was discharged on 16 June 2008. This was his third admission to hospital for an overdose of medication dispensed on prescriptions written by Dr Do. 124Late on 18 June 2008 Mr Siebler took his fourth and final overdose of medication dispensed on prescriptions written by Dr Do. On 19 June 2008 Mr Siebler was found dead on a building site at Kellyville. The subsequent coronial investigation determined that he had died as a consequence of ingesting at least two packets of amitriptyline. (We pause to observe that a box of amitriptyline 50mg strength tablets contains 50 tablets. Accordingly, 2 boxes is 5000mg - which is many times the lethal overdose. Given Mr Siebler's prior history of overdoses, prudent practice in our opinion would have been to stop prescribing amitriptyline and changing to a safer antidepressant. Mr Siebler in any event should not have been given more than one script at a time - and certainly not with repeats which could enable him to build up a lethal store of medication.) Was Dr Do as the de facto partner of Mr Siebler the primary medical provider for him in the period covered by the Amended Complaint: 125There is no dispute that Mr Siebler was relevantly the partner of Dr Do and hence a member of her "immediate family". 126For the following reasons we are firmly of the view that the Commission has established that she was his primary medical provider; and we reject the contention that Dr Do was merely a facilitator or coordinator of his real primary providers, they being the seven specialists we have referred to. 127First, the "revolving door" visits to seven different specialists (not only within specialities but between specialities) in quick succession did not provide any one of those specialists with the opportunity to effectively be Mr Siebler's primary medical provider. 128Secondly, the failure by Dr Do to adhere to the advice which those specialists had the opportunity to provide. For example, the persistent disregarding of the advice of Dr Gronow that injectable morphine should under no circumstances be administered to Mr Siebler. 129Thirdly, the decision by Dr Do in advance of consulting any specialist to use particular medications. For example, her decision to administer pethidine was taken before she consulted Dr Walker. Similarly, her decision to administer tramadol was taken without reference to Dr Gronow. Likewise, no specialist advised her to commence using morphine or amitriptyline. All these decisions were (initially at least) taken by Dr Do - and acted on. 130Fourthly, in addition to the prescriptions which she wrote for morphine, pethidine and amitriptyline, Dr Do wrote a very significant number of other prescriptions for Mr Siebler in the period 7 August 2006 to 31 May 2008. The number and variety of those prescriptions are part of Schedule B to the Amended Complaint. They run to almost 400 prescriptions. The nature of those prescriptions per se is not the subject of complaint; but rather the Commission points to them to show that in truth, quite apart from other considerations, it was Dr Do who was the treating medical practitioner for Mr Siebler in the subject period. 131Fifthly, the Medicare billing records (almost 50 Medicare services provided in which Dr Do claimed payment by reason of her being the treating doctor); and the extensive PBS prescribing records. 132Sixthly, Dr Do's assertion in at least two documents that she was Mr Siebler's treating doctor. In this regard, in exhibit A Tab 18 page 386, in a letter to the Blacktown Hospital she wrote, "... being his GP ...". Further, in exhibit A Tab 7, un-paginated but being in an e-mail to Mr Siebler's mother dated 10 August 2006, she wrote, "... and speaking as his treating doctor ...". 133Finally, there was, perhaps unconsciously, an admission by Dr Do in her evidence before the Tribunal ("... I am the doctor ...") (T350:2). 134At the time Dr Do was the primary medical provider for Mr Siebler, the New South Wales Medical Board had published a guideline concerning "Medical Practitioners Treating Relatives And Self". It was dated August 2001. It was in the following terms: "1. Background 1.1 The New South Wales Medical Board is of the view that wherever possible, medical practitioners should avoid treating members of their immediate family, because in these circumstances: Professional objectivity may be compromised and their judgment may be influenced by the nature of their relationship with the patient. Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination. The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination where the medical practitioner is a family member. Patient autonomy may be compromised when a medical practitioner treats a member of their family. The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family. ... 2.Policy The Board endorses the following general principles: ... 2.2 It is not advisable for medical practitioners to initiate treatment (including prescribing) for themselves or immediate family members. 2.3 In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or family members until another medical practitioner becomes available. 2.4 It is not advisable for medical practitioners to serve as primary or regular care providers for immediate family members, although there are circumstances in which they may work together with an independent medical practitioner to maintain establishment treatment. ..." 135Although earlier in our reasons we noted that it might have been reasonable given the circumstances then obtaining for Dr Do to conclude that neither Dr Walker nor Professor Spira (initially at least) had any problem with her treating Mr Siebler (as a family member) with, respectively, pethidine or morphine, that is really quite beside the point. Whether or not Dr Do reasonably thought that that was their opinion, any such opinion would have been contrary to the policy of the New South Wales Medical Board - and Dr Do knew that (T271). Dr Do did not need Dr Walker or Professor Spira to tell her that her treatment of Mr Siebler, especially with opiate injections, was fundamentally inconsistent with the guidelines issued by the New South Wales Medical Board. 136In any event, Dr Do cannot have been under any misapprehension in this regard following the "serious counselling" which she received from Dr Myers in late 2006 and Professor Spira in early February 2007. 137We are satisfied that in this respect alone, Dr Do's conduct in treating Mr Siebler as a family member with pethidine, morphine and amitriptyline in particular, but also more generally having regard to the breadth of the medications prescribed by her, was not merely unsatisfactory professional conduct but professional misconduct. Has Dr Do demonstrated that her knowledge skill and judgment in the practice of medicine is significantly below the standard to be reasonably expected of a practitioner of an equivalent level of training or experience? 138As we have set out in some detail above, Dr Do, between late July 2006 and 19 June 2008, engaged in a prolonged treatment of Mr Siebler. This treatment involved the use of highly addictive opiates and powerful and dangerous psychotropic medication and in circumstances where Dr Do knew Mr Siebler was drug dependent - if not addicted. 139The course of these medications was to say the least chaotic and inconsistent. 140The evidence actually reveals a continuing pattern of grossly inappropriate polypharmacy with multi anti-migraine medications, four different anti-psychotics and three benzodiazepines all of which work on the central nervous system and therefore interact with and potentiate the central nervous system depressant effect of the excessive use of potent opiates. 141Dr Do deliberately ignored expert specialist advice (we exclude in this regard Dr Walker and initially Professor Spira); and indeed withheld vital information from most of those specialists. 142We have no alternative but to accept the submission of the Commission that Dr Do, in her treatment of Mr Siebler, was "erratic, contradictory, irresponsible and destructive and was not based upon carefully following the advice and recommendations of the specialists consulted" (Complainant's Submissions [34]). 143In this regard no clearer example can be given than her decision to embark upon treating Mr Siebler with amitriptyline. In doing so she knew that he: was dependent on opiates; had overdosed recently on such medication; and had unresolved psychological, if not psychiatric, issues. Nevertheless, she embarked upon a course of prescribing large quantities of this psychotropic medication without any reference to any of the leading specialists she had only recently consulted. 144We are satisfied that in doing so she has demonstrated that her knowledge, skill and judgment in the practice of medicine is significantly below the standard reasonably to be expected of a practitioner of an equivalent level of training or experience. 145Moreover, we regard that conduct to be not merely satisfactory professional conduct but professional misconduct. Did Dr Do fail to maintain adequate records of the consultations and services provided to Mr Siebler? 146Dr Do admits that she failed to maintain such records. 147The requirement to keep such records is required by clause 5 of the Medical Practice Regulation 2003 and clause 37 of the Poisons and Therapeutic Goods Regulation 2002. 148Dr Do was unable to provide any real explanation or excuse for her failure in this regard. 149Indeed, we regard the failure to keep these records as yet a further example of her chaotic treatment of Mr Siebler. 150Her failure to do so is made the more serious because of the large number of different and potentially dangerous medications involved. 151Dr Do's lack of adequate record-keeping falls significantly below the standard to be expected of a practitioner with an equivalent level of training and experience. 152In the overall context of the matters we have discussed, we regard this as not merely unsatisfactory professional conduct but professional misconduct. Ultimate Conclusion: 153In the opinion of the Tribunal each of the particulars to the two complaints have been established. 154Moreover, we are satisfied that not only do those particulars constitute unsatisfactory professional conduct but also professional misconduct within the meaning of section 139E of the National Law. 155At the conclusion of the hearing we notionally set aside Friday 7 June 2013 at 2 p.m. for hearing submissions as to what protective orders would need to be made if we found the complaints or any part of them made out. We indicated that we would vacate that hearing date if we found no part of the complaints to be made out. 156Given our earlier conclusions, we confirm that further hearing date. Addendum: 157In the course of conducting its investigations, the Commission wrote to Professor Spira on 19 February 2009, inter alia, requesting "a report briefly detailing the treatment you provided to [Mr Siebler]". 158On 11 March 2009 Professor Spira prepared a draft letter for the Commission. Before transmitting it, however, he sent a copy of it (together with a copy of his letter of 15 September 2006 to Dr Do) to Dr Klopfer of Professor Spira's medical indemnity insurer. It would appear that Dr Klopfer then requested a copy of Professor Spira's notes - which were supplied on 12 March 2009. 159Later on 12 March 2009 Dr Klopfer sent a redacted version of Professor Spira's original letter to Professor Spira. The redacted version removed references to: (a) Professor Spira's knowledge that Dr Do was the partner of Mr Siebler as well as the treating practitioner; (b) knowledge that Dr Do had administered injections of morphine to Mr Siebler; (c) the contents of a conversation which Professor Spira had with Dr Myers on 5 December 2006 which concerned matters (a) and (b) above; (d) the contents of a telephone conversation he subsequently had with Dr Do after that conversation with Dr Myers in which there was also reference to (a) and (b) above; 160When providing the redacted document, Dr Klopfer advised Professor Spira, inter alia, "You should read this amended draft carefully and satisfy yourself that its content is accurate and truthful before sending it on your letterhead above your signature, or make any changes as you see fit. If you wish, please feel free to call me or to return the changes to me, before sending the response." 161Professor Spira sent an engrossed version of Dr Klopfer's redacted document to the Commission. 162On 7 November 2011 the Commission wrote to Professor Spira specifically raising with him an allegation made by Dr Do that he had been aware of the relationship between herself and Mr Siebler and that he had indicated to her that the administration of narcotics was acceptable treatment in the short term. The Commission sought Professor Spira's response. 163Professor Spira then wrote again to Dr Klopfer on 9 November 2011 and indicated that he wished to send to the Commission the original draft version of his letter of 11 March 2009. 164On 2 December 2011 Professor Spira wrote to the Commission and, amongst other things, enclosed a copy of that draft. In doing so he said of that document: "This was significantly edited by my professional indemnity provider so that my final letter did not reflect, adequately, my own actions with respect to the prescribing of opiates in Mr Siebler's case." 165We make three observations in relation to this aspect of the matter. 166First, the extract from the letter of 2 December 2011 was not entirely accurate because it did not reveal the advice given by Dr Klopfer on 12 March 2009 that Professor Spira should only send the redacted document if he were satisfied it was accurate and truthful. 167Secondly, when this matter was raised directly with Professor Spira in the hearing, he said that he was "not happy about the request [to make the alterations] but ... accepted it" (T28). Again, that answer did not accurately reflect the advice of the insurer in relation to the redacted document. 168Thirdly, Professor Spira accepted that the redacted document "... left out some important information" (T28). He stated that the contents of the reacted and sent letter were "... accurate and truthful, they're just not complete" (T30). 169We agree with the evidence of Professor Spira that the letter he sent on 4 March 2011 "left out some important information". We think he made an error of judgment in that respect. 170We have taken the step of highlighting this particular aspect because we wish to make it clear to all who are required to provide information to the Commission in the course of its enquiries that the withholding of important information is to be discouraged. 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: 01 May 2013