Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Platt [2013] NSWMT 14 Hearing dates: 22 and 23/07/2013 Decision date: 09 August 2013 Jurisdiction: Civil Before: Levy SC DCJ Dr S Howle Dr M Higgins Ms J Houen Decision: See paragraphs [85] - [88] for orders. Catchwords: MEDICAL PRACTITIONER - unsatisfactory professional conduct - professional misconduct - practice of inappropriate prescription of restricted Schedule 8 and Schedule 4D drugs without required authority - inadequate recordkeeping - imposition of protective orders and practice conditions Legislation Cited: Health Practitioner Regulation (New South Wales) 2010 (Pt 4 and Sch 2) Health Practitioner Regulation National Law (NSW) No 86a, Div 8 Pt 8, s 3A, s 125 - s 127, s 139B, s 139E, s 149A, s 149B, s 149C, s 150, s 150D, s 163, cl 7 Sch 5D Poisons and Therapeutic Goods Act 1966, s 28 Cases Cited: Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) NSWLR 523 HCCC v Karalasingham [2007] NSWCA 267 HCCC v Litchfield (1997) 41 NSWLR 630 Lee v HCCC [2012] NSWCA 80 King v Health Care Complaints Commission [2011] NSWCA 353 NSW Bar Association v Cummins [2001] NSWCA 284 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v HCCC [2006] NSWCA 153 Texts Cited: Royal Australian College of General Practitioners Standards for General Practices (4th Ed) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Cathryn Carmel Platt (Respondent) Representation: Ms R Graycar (Complainant) Mr M Lynch (Respondent) Health Care Complaints Commission (Complainant) Avant Law (Respondent) File Number(s): 40017/12 Publication restriction: Yes REASONS FOR DECISION Table of Contents The proceedings [1] Non-publication order [2] The complaints [3] - [7] Background and registration history [8] - [12] Events leading to the proceedings [13] - [24] Dr Platt's responses to the complaints [25] - [34] Concessions by Dr Platt [35] - [36] Findings based on concessions by Dr Platt [37] - [38] Dr O'Brien's opinions on Dr Platt's fitness to practise [39] - [50] Relevant principles [51] - [56] Considerations for protective orders [57] - [84] Preliminary [58] - [64] Censure of misconduct and deterrence [65] - [72] Psychological counselling [73] - [75] Withdrawal of Sch 8 and Sch 4D prescribing [76] - [80] Professional supervision [81] Medical records audit [82] Review of practice orders and conditions [83] Costs of these proceedings [84] Protective orders [85] Practice Conditions [86] Medical Records Audit [87] Review of conditions of practice [88] The proceedings 1This Tribunal has been convened to inquire into two inter-related complaints by the Health Care Complaints Commission ["HCCC"] concerning Dr Cathryn Carmel Platt, a general practitioner practising in Coffs Harbour, NSW. The complaints allege unsatisfactory professional conduct and professional misconduct. These allegations relate to prescriptions of narcotic and benzodiazepine drugs issued by Dr Platt to 12 of her patients between May 2005 and December 2010. The allegations also relate to the adequacy of Dr Platt's medical records for those patients in that period. The proceedings are governed by the Health Practitioner Regulation National Law (NSW) No 86a ["National Law (NSW)"]. Non-publication order 2In documents tendered in these proceedings, the 12 patients were referred to by the de-identifying alphabetical letter codes "A" to "L". At the commencement of the hearing on 22 July 2013, an order was made pursuant to cl 7 Sch 5D of the National Law (NSW) prohibiting the publication or disclosure of the names, addresses, or any other evidence and information that might tend to or lead to the identification of those patients. The complaints 3The form of complaint was filed by the HCCC on 1 June 2012. This followed a series of events triggered by a letter of complaint dated 28 October 2010 from police at Coffs Harbour to the HCCC, raising concerns about the appropriateness of a number of prescriptions for Schedule 4D and Schedule 8 drugs of addiction written by Dr Platt for her patients. 4Those concerns arose because the police had become aware of the illicit street sale of prescription drugs in the Coffs Harbour area, some of which had been traced to prescriptions issued by Dr Platt. Those concerns led to an investigation by what was then known as the Pharmaceutical Services Branch of the Department of Health ["PSB"], the functions of which are now carried out by the Pharmaceutical Services Unit ["PSU"] of the Ministry of Health. 5The first complaint alleges that Dr Platt engaged in unsatisfactory professional conduct within the meaning of s 139B of the National Law (NSW) concerning the inappropriate prescription of Schedule 4D and Schedule 8 drugs of addiction to drug dependent persons, without the required authority, and outside accepted therapeutic guidelines, in circumstances of inadequate recordkeeping. 6The second complaint alleges that Dr Platt engaged in professional misconduct within the meaning of s 139E of the National Law (NSW) in that, on an acceptance of the factual basis of the first complaint, the circumstances of the alleged conduct are of a sufficiently serious nature to justify consideration of the suspension or cancellation of Dr Platt's registration pursuant to the National Law (NSW). 7Dr Platt's patient clinical and prescription records upon which the complaints are based are voluminous. The relevant ranges of dates and the prescription quantities are summarised as follows: Patient Date Range Number of prescriptions Class of Drugs "A" 07.01.2010 - 28.06.2010 29 Narcotics & Benzodiazepines "B" 03.06.2009 - 18.06.2010 75 Narcotics & Benzodiazepines "C" 17.05.2009 - 29.06.2010 74 Narcotics & Benzodiazepines "D" 21.06.2007 - 09.12.2010 417 Narcotics & Benzodiazepines "E" 04.06.2009 - 07.06.2010 38 Narcotics & Benzodiazepines "F" 01.06.2009 - 24.06.2010 100 Narcotics & Benzodiazepines "G" 18.06.2009 - 04.02.2010 78 Narcotics & Benzodiazepines "H" 03.06.2008 - 26.06.2010 50 Narcotics & Benzodiazepines "I" 13.06.2005 - 20.12.2010 376 Narcotics & Benzodiazepines "J" 02.06.2009 - 23.06.2010 55 Narcotics & Benzodiazepines "K" 01.06.2009 - 26.06.2010 51 Narcotics & Benzodiazepines "L" 01.06.2009 - 26.06.2010 80 Narcotics & Benzodiazepines Total Prescriptions 1423 Background and registration history 8Dr Platt is presently aged 62 years. She was first granted general registration as a medical practitioner in NSW on 7 May 1977. Until the advent of the present complaints, apart from the events described in the following paragraph, there was no other relevant disciplinary history. 9On 11 February 1982, when Dr Platt worked as a general practitioner in Auburn in western Sydney, the PSB had occasion to speak to her about her prescriptions of drugs to addicts. This led to her being counselled about her prescribing obligations under s 28 of the Poisons and Therapeutic Goods Act 1966. In her evidence in these proceedings, Dr Platt described that episode as a frightening experience. At the time, the PSB pharmacist who had counselled her noted that Dr Platt had stated she would try not to allow such conduct on her part to recur. From that time until the advent of the present complaints, there had been no further recorded concerns over Dr Platt's prescribing practices. 10Dr Platt's registration has continued under successive regulatory legislation until the present time. However, as a result of the subject matter of these proceedings, Dr Platt's practice became the subject of conditions imposed by the Medical Council of NSW ["the Council"] in the period leading up to the hearing of the present complaints. 11On 1 December 2011, and until 31 January 2012, Dr Platt's practice became subject to the following conditions: (1)Not to prescribe any Schedule 8 drug of addiction and/or any Schedule 4D drug or Schedule 4D derivative, other than where such prescription is necessary for the treatment of patients resident in a residential care facility or nursing home and/or for any palliative care patient. The practitioner is to attend the offices of the NSW Pharmaceutical Services for the purposes of making a partial relinquishment of her Schedule 8 and Schedule 4D drug authorities. (2)Within one (1) month from the date of the imposition of these conditions the practitioner is to complete a distance learning program offered by the NSW Pharmaceutical Services to ensure that she has a proper knowledge of prescribing practices and requirements relating to Schedule 8 drugs and Schedule 4D drugs. Upon completion of the distance learning program the practitioner is to contact Pharmaceutical Services to arrange an appointment to sit a knowledge test relevant to such program. The practitioner is to provide documentary evidence to the Medical Council of NSW that she has satisfied the Chief Pharmacist (or the Chief Pharmacist's nominee) of Pharmaceutical Services that she has completed the program and the knowledge test satisfactorily. 12On 31 January 2012, and until the present time, Dr Platt's practice conditions were altered to delete condition (2) referred to in paragraph [11] above. Events leading to the proceedings 13After the police at Coffs Harbour had provided the HCCC with copies of Dr Platt's prescribing records and the related dispensing records, the HCCC formed the preliminary view that Dr Platt had been inappropriately prescribing Schedule 8 and Schedule 4D drugs to drug dependent persons in excessive amounts. 14On 10 December 2010, the HCCC informed Dr Platt that her treatment of the identified 12 patients was being investigated. In that correspondence, Dr Platt was requested to provide her records in relation to those patients. 15On 27 June 2011, the HCCC engaged an independent reviewer, Dr Margaret Gibbons, a general practitioner, to provide an opinion on Dr Platt's prescribing practices and records in respect of the above 12 patients. 16On 18 August 2011, Dr Gibbons provided a comprehensively detailed review report which identified the relevant guidelines and policies. Those guidelines and policies related to responsible prescribing in respect of drug seeking patients, the rational use of opioids for chronic or recurrent non-malignant pain, pain management guidelines, benzodiazepines guidelines, general practice standards criteria, and the legislative and administrative provisions requiring authority to prescribe drugs of addiction. 17The report of Dr Gibbons also set out in detail the standards of practice required of a general practitioner when prescribing narcotic analgesics and benzodiazepines. 18In her review, Dr Gibbons identified specific and strong criticisms of Dr Platt's treatment and prescribing practices in respect of the of the 12 patients. She also raised criticisms of the adequacy of Dr Platt's clinical records in respect of those patients. Dr Gibbons expressed her summary and general comments in the following terms: "Summary and General Comments The management of drug addicted and drug dependent patients is always complex as they have often had difficult lives, have poor relationship skills, have other physical or mental illnesses and may be under a great deal of pressure to obtain drugs (doctors need to be aware that narcotics have a significant 'street value' far in excess of what the patient pays in the pharmacy). Such patients may resort to deception to obtain the drugs they want. Requests for narcotics, benzodiazepines and amphetamines should always be thoroughly reviewed. Such patients can suffer serious health problems from the ongoing prescription of these drugs. They (sic) patient may be very resistant to changing to lower doses or alternative treatments, yet do well with encouragement and support. Criticism of another service is best viewed with suspicion and the complaints checked. It is prudent (and legally necessary) to obtain a PSB Authority. Such consultations are always long. The patterns of prescribing demonstrated by these patients indicates Dr Platt did not recognize (sic) the potential for addiction to narcotics and benzodiazepines in patients with chronic pain, or took measures to recognise and minimize it. The risk of iatrogenic opioid addiction for chronic musculoskeletal pain is high. The notes are very scanty and the bulk of the notes are intra-office messages relaying the patients' requests and the subsequent writing of script(s). Dr Platt has prescribed large doses of narcotics and benzodiazepines, generally above therapeutic standards, over long periods of time. Dr Platt did not apply for PSB Authority for any of these patients yet all (except perhaps with 1 exception) clearly had narcotic dependence problems. Six patients were on an OTP in the time period under review, and Dr Platt had records of this for at least 4. Following the legal requirements helps to ensure patient safety and to avoid diversion. The notes do not give therapeutic reasons for this prescribing. There are no records of assessment, regular review or monitoring of symptoms, pain relief achieved, physical examination, counselling or patient education. With few exceptions there are no overall management plans, with the use of alternative therapies. Different patients respond differently to narcotics: some develop tolerance fairly early and keep wanting higher and higher doses while others can be stabilized for a prolonged period of time. Alternative therapies can decrease the dose of narcotics needed. Step-wise progression ensures the minimum necessary doses are prescribed. Most of these prescriptions have been written for the small quantities available without a PBS Authority, thus avoiding the need for review by another practitioner. This encourages the patient to return frequently but that is only necessary when doses are being changed, for ongoing counselling and encouragement, or if the physical condition has changed. Patients in general are better served by longer more comprehensive consultations (eg at monthly intervals) than frequent brief script-writing ones." 19Dr Gibbons also expressed a concern that many scripts were apparently written by Dr Platt at the request of patients without evidence of the patients having been seen by her. 20On 21 October 2011, the HCCC informed Dr Platt that it had completed its investigation and as a result, it had formed the view that her prescribing practices in respect of the 12 patients were significantly below what was reasonably expected of a practitioner of an equivalent level of training and experience in the following 5 particular respects: * Inappropriate prescription of Schedule 8 drugs to 12 patients without first obtaining an appropriate PSB authority when she knew or ought to have known that those patients were drug dependent; * Prescribing Schedule 8 drugs to 11 patients without complying with the PSB prescribing guidelines; * Inappropriately prescribing Schedule 8 drugs to 12 patients without a documented clinical reason, without appropriate review or monitoring, and without attempting to treat the patients with other modalities, and at the request of the patients; * Inappropriately prescribing Schedule 4D drugs to 12 patients at doses that did not accord with prevailing therapeutic guidelines; * Not keeping appropriate clinical records for the 12 patients concerned. 21On 25 November 2011, and in response to an invitation to comment on these matters, Dr Platt advised the HCCC as follows: "Thank you for the opportunity to provide a response to the complaint against me. In that regard I note the criticisms raised against me in that report. Upon reflection, I concede that a number of criticisms leveled (sic) at my prescribing practices to the patients, the subject of the complaint, are warranted. I appreciate that this matter is likely to proceed to a disciplinary hearing and in those circumstances I will provide a comprehensive response to the complaint once that complaint is fully particularised." 22On 30 November 2011, following information provided to the Council by the HCCC concerning Dr Platt's prescribing practices, and out of concern about those practices, the Council convened a hearing under s 150 of the National Law (NSW) to determine whether it was appropriate to take any regulatory or disciplinary action against Dr Platt. Following, and as a result of the s 150 hearing, conditions were imposed on Dr Platt's practice as already identified at paragraph [11] above. 23The other outcome of the s 150 hearing was that the subject matter of that hearing was referred to the HCCC for further investigation pursuant to s 150D of the National Law. This led to the filing of the present complaints. 24On 1 June 2012, the HCCC filed the present extensively particularised complaints set out in a series of 45 paragraphs, and in the numerous related sub-paragraphs. The full text of the terms of that complaint is annexed to these reasons in the form of an Appendix. Dr Platt's responses to the particularised complaints 25Over the course of the ensuing 9 months, Dr Platt worked her way through the comments in the report of Dr Gibbons and her own copies of the 12 patient records to prepare her responses to the particularised complaints. The delay in providing a written response to the complaint was in part due to an element of avoidance on the part of Dr Platt. Ultimately, after an initial reaction of anger and denial, Dr Platt came to realise the complaints had substance. 26In her consequential statement of responses dated 1 March 2013, and as foreshadowed by her letter to the HCCC dated 25 November 2011, Dr Platt admitted that the allegations of unsatisfactory professional conduct and professional misconduct were true, and she expressed her shame that this was so. 27Dr Platt explained that the underlying circumstances which had based the complaints had arisen because she had felt sorry for the 12 patients, and noted that they had experienced chaotic and difficult lives. She acknowledged that she had misguidedly believed that by issuing the prescriptions she did, that she was somehow helping those patients to cope, but she now realises she had been prolonging their drug dependence in a way that could jeopardise them and could cause them harm. 28Dr Platt also acknowledged that her system for supervision and monitoring of her patients, and her practise of having issued them with repeat prescriptions for narcotics and benzodiazepines, was naïve, wrong, inadequate, represented poor management, and was one that unnecessarily exposed patients to risks from repeated prescriptions of these drugs. 29Dr Platt also recognised that she had failed in her duties to those 12 patients, and that she had exposed them to the risk of overdose and aberrant behaviour, and in doing so, she had done them a disservice by prescribing Schedule 8 and Schedule 4D drugs for them too easily, without adequate review, and without seeking other methods for treating their presenting problems. 30Dr Platt claimed that she had not properly understood the need to obtain appropriate authorities to prescribe drugs of addiction to persons who were drug dependent. She explained that she considered the 12 patients to be chronic pain patients, which she believed had distinguished them from being classified as being drug dependent persons. The Tribunal considers that view to have been misguided. 31Significantly, Dr Platt also acknowledged that her patient records were "hopelessly inadequate". 32In the terms of the following extract, Dr Platt expressed her contrition for the shortcomings in her practice: "14. This complaint has alerted me to the fact that I have been doing the wrong thing in relation to prescribing drugs of addiction and my management generally. Once I looked carefully at the records involving these twelve patients I felt ashamed of what I had done to these patients by maintaining their dependence on benzodiazepines and narcotics. I am devastated by the realisation that I was prescribing narcotics to my patients unlawfully and without proper authority. I should have been applying for authorities to prescribe these medications. I knew I had to apply for authorities for Methadone however I did not know I had to do it for Morphine and OxyContin. I know that at one stage some of the patients were drug dependant but I thought that after years of stability they would be considered as chronic pain patients. When I have applied for authorities for chronic pain patients, Pharmaceutical Services have told me that I did not need authorities. 15. Up to the time I received the complaint I had always thought of myself as law abiding. I know it is no excuse to say I did not fully understand the laws. I have since studied them and will continue to do so. In the last 14 months I have had to question many things about myself and whether I am fit to be a doctor. I have felt ashamed, overwhelmed and devastated. I was embarrassed to tell family, friends, and patients about the complaint and my conduct. I am also grateful that the complaint has happened because it has stopped me from doing what I was doing and putting some of my patients at risk. It has also made me critically evaluate everything I do. Fortunately my colleagues have been very supportive and have pointed out to me the positive things I do in the treatment of my patients. 16. Since receiving the complaint I have been to seminars on pain management and the last one I attended in October 2012 (Pain management Master Class -A Practical Approach to Chronic Pain Management) taught me some very good tools for assessing patients before they commence on narcotics. This can predict their risk of dependence and aberrant behaviours. 17. Attitudes to pain management have changed over the years. The emphasis now has changed to treat the pain so that the patient can resume the function that they want in their life. This means you can get away with smaller doses and the patient does not have the expectation of no pain. There is now an opioid trial so if aberrant behaviours arise, medications can be weaned down. They also brought up for the first time the concept of an opioid withdrawal trial. That is when a patient has been stabilised for a certain time then can slowly reduce the dose and sometimes wean them off. 18. I am now aware of the recommendations and guidelines for prescribing benzodiazepines. 19. I have learnt to be aware of drug seeking behaviour such as complaints of pain that I cannot verify, running out of medication early, stolen prescriptions etc, in patients on narcotic medication. Everyone should be weaned off benzodiazepines if possible." 33At the suggestion of her solicitors, Dr Platt saw a psychologist but terminated the therapeutic relationship as she thought the process was circular and unproductive. In the course of her evidence at the Tribunal hearing she acknowledged that such termination was probably avoidant behaviour on her part. 34At the referral of her own general practitioner, Dr Platt saw Dr Elizabeth O'Brien, a consultant psychiatrist. Due to distance difficulties, she has seen Dr O'Brien on only 4 occasions in Sydney. Dr O'Brien's report dated 1 July 2013 was tendered. Dr O'Brien also gave oral evidence at the hearing. Concessions by Dr Platt 35In her concessions to the Tribunal, Dr Platt admitted that she had engaged in unsatisfactory professional conduct as well as professional misconduct, as particularised. After reviewing the 13 volumes of material that was tendered by the parties, the Tribunal was comfortably satisfied that the admissions concerning unsatisfactory professional conduct and professional misconduct made by Dr Platt were appropriate in light of the content of that material. 36In the light of those concessions by Dr Platt, apart from the need to state the formal findings of the Tribunal, it is no longer necessary to canvass the detail of her records or the detail of her management of the 12 patients who are the subject of the present proceedings: Exhibit "A", Volumes 2 to 6. Findings based on concessions by Dr Platt 37In view of Dr Platt's admissions, which were properly made on the evidence, the Tribunal finds that Dr Platt engaged in unsatisfactory professional conduct as well as professional misconduct within the respective meanings of s 139B and s 139E of the National Law (NSW). The Tribunal is satisfied that the conduct of Dr Platt under review, which was not an isolated event but a course of conduct over a considerable period of time, is of a sufficiently serious character to justify consideration of the suspension or cancellation of her practising rights. 38With the consent of the parties, the Tribunal proceeded to hear explanatory factual evidence from Dr Platt, including the tender of mitigatory evidence, in order to determine the appropriate protective orders without the need for a separate hearing, which would otherwise have been necessary if the stated concessions had not been made: King v Health Care Complaints Commission [2011] NSWCA 353. Dr O'Brien's opinions on Dr Platt's fitness to practise 39Dr O'Brien was first consulted by Dr Platt in November 2012. There were 3 professional consultations followed by a fourth consultation on 29 April 2013 for the purposes of an interview in order to enable the preparation of Dr O'Brien's report dated 1 July 2013. 40Dr O'Brien undertook a forensic evaluation of the level of Dr Platt's insight and understanding into the problems which had led to the complaints. At the initial interview, Dr O'Brien noted Dr Platt demonstrated a degree of denial of the seriousness of the complaint, and an incomprehension as to how the situation of the complaint had occurred. In Dr O'Brien's assessment, Dr Platt had exhibited limited insight into her predicament and how it had arisen. She noted that Dr Platt had expressed considerable doubt as to the indication or usefulness of a psychological or psychiatric assessment in her situation. 41Dr O'Brien ascribed this attitude to Dr Platt's background sense of self and personality in circumstances where she felt she had selflessly valorised commitment and contribution to her community, and had worked extremely hard in those areas as part of her commitment to the wellbeing of others, at times to the detriment of her own interests, and at the expense of keeping proper medical records. 42Dr O'Brien observed that over the course of her consultations, Dr Platt slowly began to recognise the validity of the complaints raised against her. Dr O'Brien considered that in her practice, Dr Platt had blurred some important practice principles that needed to be observed. This had occurred because of an over-emphasis on her part to attending to the needs of others without due regard to a critical and reflective stance about her own attitudes, practices and outcomes. Dr O'Brien summed up the aetiology of the resultant problem as follows: "Dr Platt's overinvestment in her idealised view of herself as a caring and committed practitioner, working excessively long hours and without due regard to her own welfare, without critical evaluation of the impact of her style of treatment on her patients, led to a very significant discrepancy between her perceived description of herself as a caring and committed general practitioner and the actual practice whereby her patients were potentially at risk because of her poor level of scrutiny of her own prescribing habits, their psychological and physical needs, and her lack of attention to recommended practice." 43When Dr O'Brien last reviewed Dr Platt on 26 April 2013, Dr Platt had acknowledged that she had only slowly come to the realisation that she had been placing others at risk of harm rather than helping them. By that stage Dr Platt had expressed an acknowledgment to Dr O'Brien of the need to be mindful of the earlier shortcomings in her approach to practising medicine. This related to rules concerning prescribing practices and recordkeeping issues. 44Dr Gibbon's review report was provided to Dr O'Brien after her consultations with Dr Platt. Dr O'Brien saw no inconsistencies between the matters raised in the review by Dr Gibbons and Dr Platt's account of those matters in consultation. In summing up the result of her successive interviews with Dr Platt, Dr O'Brien concluded as follows: "As noted above, Dr Gibbons' report was provided to me after my consultations with Dr Platt. However, there is nothing in the particulars or Dr Gibbons' response (sic for report), that is inconsistent in this regard. In my opinion, it is clear that Dr Platt had fallen into a style of practice, that was driven predominantly by her own personal sense of providing the best for her patients, without a balancing reference to the best standards of practice including comprehensive assessment, risk assessment, and best practice in terms of dealing with the particular medications that her patients were reliant upon, narcotics, opioids and benzodiazepines. What is more difficult to ascertain from a review of the particulars and from Dr Gibbons' report, is a perspective of how this particular element of practice was only one element of Dr Platt's overall medical practice, which is reflected in the comments from her referring general practitioner and colleague. Taken at face value, the particulars and Dr Gibbons' report are a damning indictment of a doctor's inability to best assess and manage patients, in the area of narcotic and benzodiazepine prescription. That the patients' wellbeing was poorly advanced by Dr Platt, and that she may have endangered her patients' wellbeing is not contestable in my view. However, in my opinion, Dr Platt's motivation was not one of callous disregard for the wellbeing of her patients, not driven by monetary incentive, not contributed to by her own reliance on addictive medication, nor by severe personality dysfunction. Rather, Dr Platt's practice is symptomatic of a "workaholic doctor" by virtue of endlessly endeavouring to provide for the needs of patients, as perceived by her, neglecting to put limits on herself, as on her patients, and failing in the particular regard of "knowing your own limitations". The circumstances where Dr Platt has faced the Medical Council restrictions on her practice and is now facing prosecution by the Health Care Complaints Commission, has dramatically and effectively illustrated to her the need to re-evaluate her approach to her practice of medicine. The benefits of undertaking the various courses that Dr Platt has completed combined within the process of preparation for the Tribunal, has occasioned her a very thorough opportunity to reconsider her own practice. It has led to the the (sic) profound and painful realisation for Dr Platt that her practices were in fact antithetical in many cases to the wellbeing of her patients: this has given Dr Platt this chance to review, reconsider and change her own personal stance, and her professional practice." 45Dr O'Brien concluded that Dr Platt had, over time, demonstrated a significant shift in her understanding, acceptance and insight into the causes of the poor practice which brought her to disciplinary attention. In her report, Dr O'Brien also concluded that Dr Platt's significant shift in stance towards the needs of her patients, together with Dr Platt having become more able to reflect and review her practice and methods, meant that she would not represent an ongoing threat to the wellbeing of patients in her care. 46 Dr O'Brien ultimately concluded: "Finally, in my opinion, Dr Platt, while flawed for many years in her approach to her medical practice, has developed an insight into those flaws and a capacity to amend and alter her practice such that she will better deliver to her patients the standards of care required of a competent and effective doctor." 47The Tribunal was concerned to have some oral evidence from Dr O'Brien, particularly as she had not been provided with a history of the events of 1982, and the related counselling on prescribing practices at that time. Dr O'Brien was asked to consider those events and Dr Platt's description of those events when she had been confronted with the details, as having been a frightening occasion which resulted in an attitude of intended compliance that had fallen by the wayside due to neglect over time. 48Dr O'Brien did not have the opportunity of further exploring those events with Dr Platt before giving evidence, but said that in terms of the opinions she had expressed, the additional item of history reflected the degree of denial and very poor insight, and initial unwillingness to accept her faults that she had displayed at her initial interview with Dr O'Brien. 49Dr O'Brien considered that in light of the historical events and in view of Dr Platt's decision to terminate the therapeutic relationship that she had with a psychologist, she thought it would be beneficial for Dr Platt to engage in such a therapeutic relationship to assist her to understand the events, the impact that her own personality style had in contributing to the genesis of the events, and to assist Dr Platt to process and implement the result of the present proceedings. Dr O'Brien considered those undertakings would best be achieved by fortnightly, or at least monthly consultations with a psychologist for a minimum period of 12 months. 50Dr O'Brien also suggested that there be professional peer supervision of Dr Platt. Dr O'Brien clarified her opinion on Dr Platt's insight into her previously flawed practice, as it related to her current fitness to practise, by saying that a framework of ongoing scrutiny of Dr Platt's practice was advisable for a period of time, to ensure that Dr Platt's insight remained adequate for her to practise safely. Relevant principles 51The paramount or overriding consideration for the exercise of the jurisdiction of the Tribunal is the function of protection of the public: s 3A of the National Law (NSW). 52Other relevant considerations include the need to maintain high professional standards and to deter others from engaging in similar conduct: HCCC v Litchfield (1997) 41 NSWLR 630, at 637E; NSW Bar Association v Meakes [2006] NSWCA 340, at [114]. 53The consideration of the deterrence, which can be both specific to the practitioner or general to the profession at large, in the context of the specialised jurisdiction of this Tribunal as distinct from tribunals differently constituted, also has the more positive effect of encouraging other practitioners to recognise the importance of complying with professional standards and to avoid the risks associated with failure to do so: Prakash v HCCC [2006] NSWCA 153, at [91]. 54An unavoidable concomitant of making orders aimed at protecting the public is that sometimes the protective orders demanded by the circumstances may be incidentally punitive in effect, although that is not the purpose of the orders so made: Lee v HCCC [2012] NSWCA 80, at [20], [31], following Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) NSWLR 523, at [83]. 55In cases where permanent unfitness to practise has not been demonstrated, and censure of the practitioner is otherwise required by the circumstances of serious demonstrated fault in the impugned conduct, suspension rather than removal of practising rights is the more appropriate protective order: NSW Bar Association v Cummins [2001] NSWCA 284, at [26] to [27]. 56The Tribunal was referred to a number of decisions of differently constituted medical tribunals and appellate courts involving protective orders made in cases of the inappropriate prescription of drugs. It is unnecessary to cite the details of those decisions here other than to state that there can be no defined tariffs for protective orders. The protective orders in each of those cases were necessarily dependent upon and mandated by the particular circumstances of those cases rather than operating as precedents for other cases that follow: Lee v HCCC, at [30], citing HCCC v Karalasingham [2007] NSWCA 267, at [70]. Considerations for protective orders 57Before identifying the specific protective orders and conditions we propose to make, it is necessary to make some preliminary observations. Preliminary 58Although it is undoubted that Dr Platt has undergone a salutary, embarrassing, and probably scarifying experience in having to address and concede the present complaints, and any protective orders will be burdensome for her, in approaching the framing of appropriate protective orders, the Tribunal is primarily concerned with the paramount consideration of the protection of the public: s 3A of the National Law (NSW). In this regard, the Tribunal is of the view that the structured protective orders it proposes to make must remain in place for a period of time in order to provide the Council, as the responsible regulatory authority, with a degree of confidence that Dr Platt will be able to practise safely. 59Any incidental inconvenience to the practitioner, or possible perception of a burdensome or punitive effect of necessary protective orders, is a secondary consideration, and is in any event necessary to achieve the protective purposes the Tribunal has in mind: Lee v HCCC, at [20], [31]. 60It was in effect submitted on Dr Platt's behalf that in light of her salutary experience, and since she has now upgraded her knowledge of clinical standards and guidelines on matters that were previously identified as shortcomings in her practice, the scope for imposition of protective orders has become somewhat diminished. 61Given the scope for harm to be occasioned to patients in the course of medical practice, and given the concomitant need to ensure the protection of the public, the Tribunal does not accept that submission. In the paragraphs that follow we outline our reasons for the imposition of the individual components of the protective orders and conditions that we propose to make. 62In approaching the framing of protective orders the Tribunal has had regard to the extensive written testimonial evidence provided on behalf of Dr Platt: Exhibit "1", Tab [4]. There is no suggestion that Dr Platt acted with mal-intent, or that she was motived by factors such as financial gain in respect of the conduct which is the subject of the proceedings. We accept the testimonial evidence, the evidence of Dr Platt and the assessment of Dr O'Brien to the effect that Dr Platt had only good intentions towards the patients in question, and is an otherwise committed practitioner. 63The Tribunal has also taken into account Dr Platt's efforts to upgrade her skills and to comply with the conditions that the Council imposed upon her practice since these matters came to light. We have also taken into account Dr Platt's genuine expressions of shame, embarrassment at having jeopardised the wellbeing of her patients, and her genuine statements of remorse at having done so. It is also to her considerable credit that she has made extensive beneficial contributions of her time and support to communal activities in the area in which she practices, without expectation of financial reward. 64However, those matters do not operate to cancel out the significant breaches of the required standards of practice. The Tribunal considers that protective orders, including those with a deterrent effect, are nonetheless required in this case having regard to the serious lapses that amounted to professional misconduct. Censure of misconduct and deterrence 65In this case, the Tribunal is of the view that there is a strong need for censure of the conceded misconduct for the purpose of deterrence of repetition of the conduct on the part of the practitioner or emulation of such conduct by other practitioners. In our view this mandates protective orders that incorporate both general and specific deterrence, on an application of the principles and the authorities identified at paragraphs [51] to [56] of these reasons. 66Amongst the array of available censure mechanisms under the National Law (NSW), the Tribunal has considered the appropriateness of a reprimand under s 149A, a fine under s 149B, suspension or cancellation of registration from practise under s 149C. 67Although cancellation of the practitioner's registration is not called for in this case, the Tribunal considers that at the very least, the conceded misconduct calls for a reprimand. In this case, the Tribunal is of the view that a fine would appear to be unduly punitive, especially since there was no evidence of turpitude or intention to achieve personal gain on the part of Dr Platt, and it is more appropriate that in the public interest, other combinations of protective orders should be made; s 149B(2)(b). This leaves for consideration the question of a possible suspension. 68The Tribunal is of the firm view that a period of suspension is called for in this instance. The subject matter of the complaints arose because Dr Platt was very busy in her practice, and she did not allow herself sufficient time or space to reflect upon her standard of practise. In that regard she failed to recognise that her practise in respect of the matters complained of was significantly below the required standard, as has been identified in the opinion of the peer reviewer, and which she has now conceded. Furthermore, Dr Platt's insight into these problems was only achieved slowly over time in the few months in which she faced an imminent Tribunal hearing, against a history of denial and avoidant behaviours on her part. 69In those circumstances, the Tribunal considers that a relatively short period of suspension will afford Dr Platt the undistracted opportunity to take remedial steps along the lines of implementing the other proposed protective orders that will enable consolidation of the personal gains she has made thus far in order to equip her to safely resume practice. 70The Tribunal is of the view that a suspension from practice for a period of 3 months is required in this case as an appropriate censure of Dr Platt's conduct. This is intended to serve as a strong deterrent indication, both specifically to her and to other practitioners generally, that the misconduct the subject of these proceedings cannot be condoned. 71Such suspension is intended to be protective of the public and is not intended to be punitive, although it is acknowledged that an inevitable punitive effect will be to deprive Dr Platt from earning an income for the period of the suspension. It is for that reason that the Tribunal has selected a shorter period of suspension limited to 3 months rather than the upper range of 6 months that was canvassed in the submissions made on behalf of the HCCC. 72The effect of the proposed order will be that the commencement of the period of suspension will be delayed for a period of 4 weeks to enable Dr Platt to make proper interim arrangements to cover the needs of her patients during the period when she will be necessarily absent from her practice. Psychological counselling 73The Tribunal has had the advantage of hearing the views of Dr O'Brien who has seen Dr Platt over the course of a number of professional consultations. Dr O'Brien has canvassed the subject matter of the complaints with Dr Platt and has also considered the circumstances of Dr Platt's earlier decision to terminate her therapeutic contact with a psychologist. Dr O'Brien supports the need for Dr Platt to resume seeing a psychologist and the Tribunal takes a similar view given the delayed insight, denial and avoidance issues outlined in the evidence of Dr O'Brien and summarised at paragraphs [39] to [50] above. 74In her evidence, Dr Platt indicated that she would resume seeing a psychologist. The Tribunal considers that this issue should be a condition of registration for a specified period to consolidate the insights Dr Platt has gained thus far. The expectation is that Dr Platt will make prompt arrangements in that regard and commence seeing a psychologist during the period of her suspension. The Psychologist whom she consults should be provided with a copy of Dr O'Brien's report, a copy of the transcript of Dr O'Brien's oral evidence to the Tribunal, and a copy of these reasons for decision. Dr Platt should not be at liberty to terminate the therapeutic relationship with the psychologist without the consent of the Council. 75The Tribunal is of the view that the pattern of consultations with the psychologist should initially be fortnightly, and then monthly, along the lines of the recommendation by Dr O'Brien, with the provision for feedback to the Council, and subject to the further direction of the Council. Withdrawal of authority to prescribe Schedule 8 and Schedule 4D drugs 76At present, Dr Platt's practice conditions preclude her from access to and prescription of Schedule 8 and Schedule 4D drugs except for her palliative care and nursing home patients. The rationale for Dr Platt retaining those limited prescribing rights was that there were limited numbers of practitioners in her area willing to undertake the management of those patients. 77The Tribunal has remaining concerns over the degree of integration of Dr Platt's insight into the demonstrated shortcomings in her prescribing practices of Schedule 8 and Schedule 4D drugs. Such prescribing rights have caused significant difficulty for Dr Platt in the past. The evidence given in these proceedings, in which Dr Platt's insights concerning iatrogenic drug dependency issues were explored, indicates that her delayed insights on such matters are still evolving and should undergo further consolidation. This is also the effect of the opinion of Dr O'Brien. 78In those circumstances, the Tribunal considers that Dr Platt's right to prescribe Schedule 8 and Schedule 4D drugs should be withdrawn completely pending any further determination by the Council and following a further period of consolidation of her knowledge and understanding on such matters. 79In coming to this conclusion, the Tribunal has been mindful of the likely inconvenience to Dr Platt's palliative care and nursing home patients who may be in need of such drugs. However, the evidence is that there are now increased facilities for palliative care in the area where Dr Platt practises and the numbers of the patients likely to be affected has now reduced. Overarching those considerations is the view of the Tribunal that the proposed order withdrawing prescribing rights for these classes of drugs is nevertheless justified in the public interest. 80The order proposed by the Tribunal will not preclude Dr Platt from applying to the Council for such rights to be again granted to her after the nominated period of time has elapsed and if she is able to satisfy the Council on matters of her own insights and matters of patient safety. Professional supervision 81Whilst Dr O'Brien has expressed the view that Dr Platt has achieved a level of insight into her prescribing misconduct such as to make her safe to practice, her resumption of practice should initially be within a supervisory framework. For that reason, the Tribunal is of the view that Dr Platt's future practise must be the subject of professional peer supervision by a peer practitioner outside of her own practice. When she resumes practise following the nominated period of suspension, Dr Platt should have Level 3 peer supervision along the lines provided by the Council's Guidelines for Supervision Policy (Policy PCH 7.4). Our orders will reflect that requirement, which is intended to be educative, not punitive. Submissions made on behalf of Dr Platt have conceded the need for this measure to be implemented. Such supervision would assist Dr Platt with appropriate medical recordkeeping, and with referral of those of her patients who may require Schedule 8 or Schedule 4D medications, as well as consolidating her knowledge of alternative strategies for managing such patients. Medical records audit 82Given the shortcomings identified in the review by Dr Gibbons concerning Dr Platt's medical records, and given the importance of proper maintenance of such records, the Tribunal is of the view that Dr Platt's records should be audited over time to assess her compliance with the Health Practitioner Regulation (New South Wales) 2010 (Pt 4 and Sch 2) and the Royal Australian College of General Practitioners Standards for General Practices (4th Ed) especially Standard 1.7 concerning the content of patient health records. Our order will reflect this view as the Tribunal felt the practice accreditation process was sufficiently detailed to assure such compliance. Submissions made on behalf of Dr Platt have in effect conceded the need for this measure. Review of protective orders and practice conditions 83The Tribunal recognises the onerous nature of the conditions it proposes to impose on Dr Platt's practice, as well as recognising that Dr Platt has over time demonstrated gains in insight of the required standards. It is therefore proposed that after a period of 18 months, Dr Platt should have the right to apply to the Council for variations in any ongoing restrictions to her practice conditions at that time, if she feels the need to do so. Costs of these proceedings 84As the complaints in these proceedings have been sustained, it follows in accordance with Sch 5D, cl 13, and in accordance with accepted authority and practice, that Dr Platt should be ordered to pay the costs of the HCCC to indemnify it for the costs it has incurred in bringing these proceedings in the public interest. Protective orders 85The Tribunal makes the following orders: (1)The Practitioner is reprimanded; (2)The Practitioner is suspended from practising medicine for a period of 3 months effective from Monday, 9 September 2013 and is precluded from recommencement of such practice until Monday 9 December 2013; (3)The Practitioner is to be subject to conditions on her registration as set out in paragraph [86] below under the heading Practice Conditions; (4)The Practitioner must submit her practice to medical records audit as set out in paragraph [87] below under the heading Medical Records Audit; (5)The Practitioner shall not make an application for variation in any of the specified Practice Conditions to the PSU or to the Council before the expiry of 18 months from the date of these reasons; (6)The Practitioner is to pay the complainant's costs in the proceedings. Practice Conditions 86The practice conditions referred to in sub-paragraph (3) of paragraph [85] above are as follows: (1)The Practitioner is not to possess, prescribe, supply administer or dispense Schedule 4 Appendix D drugs in any circumstances. Her Schedule 4 Appendix D drug authority is to remain withdrawn by the Pharmaceutical Services Unit, NSW Ministry of Health ["PSU"] formerly known as Pharmaceutical Services Branch, Department of Health (NSW); (2)The Practitioner is not to possess, prescribe, supply, administer or dispense Schedule 8 drugs of addiction in any circumstances. Her Schedule 8 drug authority is to remain withdrawn by the PSU; (3)Any future change to the Practitioner's Schedule 8 and Schedule 4D drug prescribing authority status must be in accordance with the Council protocol. This includes consultation with the Council prior to the making of any application for variation to the PSU. (4)If practising in general practice, the Practitioner is to work only in an accredited group practice. (Group is defined as 2 or more medical practitioners excluding Dr Platt. An accredited practice is defined as one that is currently certified by an appropriate General practice accrediting certifier as complying with the current (4th Ed) RACGP Standards of Accreditation); (5)If practising in general practice other than in her own practice, the Practitioner is to notify the owner/s and principal of the practice, and any other practitioner (including future practitioners) who may be working on site with her of these conditions and to forward to the Council, within 7 days, a copy of these Conditions signed by each one of those practitioners; (6)Any subsequent change in the Practitioner's Schedule 8 and/or Schedule 4D prescribing status must be in accordance with the Council's protocol. Prior to the submission of any variation application to the PSU, pursuant to s 163(1)(a) of the National Law (NSW), the Practitioner must seek and obtain approval of the Council to the lifting of conditions (1), (2) and (3) above, and to the re-instatement of any withdrawn prescribing authority; (7)The Practitioner is to authorise and consent to any exchange of information between the Council and Medicare Australia and/or the Pharmaceutical Services for the purpose of monitoring compliance with these conditions; (8)The Practitioner is to attend a Council approved psychologist for the purpose of counselling sessions for a minimum period of 12 months from the date of the first consultation. All expenses associated with the counselling as set out in this condition are to be met by the Practitioner. To facilitate this condition the Practitioner is to: (a)Nominate a psychologist for Council approval within 21 days of this decision; (b)Meet with the psychologist within one fortnight of being advised by the Council that her nominated psychologist has been approved, and to thereafter meet fortnightly or monthly as determined by the psychologist, but to meet at least once a month, unless the Council directs otherwise; (c)Provide the psychologist with a copy of the report of Dr O'Brien dated 1 July 2013, a copy of the transcript of evidence of Dr O'Brien and a copy of this Tribunal's Reasons for Decision dated 9 August 2013; (d)Authorise the psychologist to provide the Council with a report of the Practitioner's progress in the approved format on a 3 monthly basis; (e)Authorise the psychologist to notify the Council immediately if there are any concerns or issues in relation to the Practitioner's compliance with any condition or if the counselling relationship ceases prematurely. (9)The Practitioner is to nominate a supervisor within the next 28 days to be approved by the Council, to monitor and review her clinical practice and compliance with conditions in accordance with Level 3 Supervision as contained in the Council's Guidelines for Supervision (Policy PCH 7.4). The supervisor is to be an approved RACGP supervisor recognised by AHPRA as having specialist registration within general practice. The supervisor is to be provided with a copy of the Council's Policy for Supervision, and a copy of this decision. The Practitioner is to be responsible for all costs associated with the supervision arrangement. The Practitioner is to ensure that: (a)She has shown and discussed this Decision with the supervisor. (b)She and the supervisor meet on an initially fortnightly basis for 3 months for at least two hours on each occasion, and then monthly, the first meeting to occur within two weeks of being advised by the Council that her nominated supervisor has been approved. (c)At the first meeting she and the supervisor are to develop a written plan, identifying the practice issues to be addressed and the ways in which to address deficiencies. Progress of compliance with this plan is to be regularly reviewed at these meetings. (d)The meetings with the supervisor should comprise a mixture of direct observation of her practice in addition to discussion of a mixture of self-selected and randomly selected cases. (e)At each meeting they address issues as set out in the decision of the Medical Tribunal dated 9 August 2013 and case reviews, medical record reviews, workload, pathology result reviews, clinical outcomes, patient follow up communication skills, overall patient care and management, appropriate prescribing practices. (f)At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (g)At each meeting the Practitioner is to maintain a log of the patients observed/reviewed and the issues discussed. (h)The supervisor forwards to the Council, initially on a monthly basis for the first 6 months and then subsequently every 3 months a Supervision Report in a format prescribed or approved by the Council. (i)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, health or if the supervisor relationship ceases. (j)In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship; (10)The Practitioner is to obtain Council approval prior to changing the nature or place of her practice; Medical Records Audit 87The Medical Records Audit referred to in sub-paragraph (4) of paragraph [85] above is as follows: (1)The Practitioner is to submit to an audit at her premises, of a random selection of her medical records by a person or persons nominated by the Council to assess her compliance with the relevant provisions of the Health Practitioner Regulation (New South Wales) 2010 (Pt 4 and Sch 2) and the RACGP's Standards for General Practices (4th Ed), in particular Standard 1.7 'Content of Patient Health Records' with particular attention to her assessment of patients, treatment plans and prescribing of medication. (2)The audit is to occur within 6 (six) months from the date of this decision and subsequently at 12 (twelve) monthly intervals, or as required by the Council. The Practitioner is to authorise the Auditor/s to provide the Council with a report on their findings. The Practitioner is to meet all costs associated with the audit/s and any subsequent reports. The Practitioner is not to seek a variation in this condition until there have been 2 such audits. Review of conditions of practice 88The review of practice conditions referred to in sub-paragraph (5) of paragraph [85] above are subject to the following provisions: (1)These conditions may be altered, varied or removed by the Council and the Council is the appropriate review body for the purposes of Div 8 Pt 8 of the Health Practitioner Regulation National Law (NSW). (2)Should the Practitioner seek to change or remove any of the conditions imposed as a result of this Tribunal's orders when her principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the Health Practitioner Regulation National Law are to apply, so that a review of these conditions can be conducted by the Medical Board of Australia. Appendix ********** Amendments 12 August 2013 - Typographical, comma replaces full stop. Amended paragraphs: Para [4] 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: 12 August 2013