Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Hearing dates: 4 and 5 March 2014 Decision date: 08 April 2014 Jurisdiction: Occupational Division Before: Wright J, President Dr R Gordon, Professional Member Dr K Ilbery, Professional Member J Houen, General Member Decision: 1.The respondent, Dr Albina Della Bruna, be and hereby is reprimanded. 2.The conditions set out below in the schedule headed "Health Care Complaints Commission v Dr Albina Della Bruna - Conditions" (the Conditions) be imposed on the respondent's registration 3.The Conditions may be altered, varied or removed at the discretion of the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 4.Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of the Conditions can be conducted by the Medical Board of Australia. 5.The respondent pay the complainant's costs. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 Ex Parte Lenehan HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1948/45.html" \o "View Case" [1948] HCA 45 Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v King [2013] NSWMT 9 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Lee v Health Care Complaints Commission [2012] NSWCA 80 Ohn v Walton (1995) 36 NSWLR 77 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Albina Della Bruna (Respondent) Representation: Counsel: W Hunt (Complainant) M Lynch (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Avant Law Pty Limited (Respondent) File Number(s): 1420060 Publication restriction: Orders under cl 7 of Schedule 5D to the Health Practitioner Regulation National Law (NSW): 1. The names of the patients of the Dr Della Bruna not be disclosed in the proceedings and that the anonymisation initials specified in the schedules [to the Further Amended Complaint] should be used. 2. For the purposes of Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014, no part of any document which contains the name or personal information relating to any past or present patient of the respondent [Dr Della Bruna] be disclosed or published. reasons for decision Introduction 1The Tribunal has before it for inquiry 3 complaints made by the complainant, the Health Care Complaints Commission (the HCCC), against the respondent, Dr Albina Della Bruna, a medical practitioner registered under the Health Practitioner Regulation National Law (NSW) (the National Law). The complaints in their final form are contained in a Further Amended Complaint which was filed on 5 March 2014 by leave of the Tribunal granted, by consent, on that day. 2The allegations in the 3 complaints can be summarised as follows: (1)Unsatisfactory professional conduct (under s 139B of the National Law) during the period from 1 January 20019 to 30 March 2010 arising out of Dr Della Bruna's failure to account for, and improper administering and prescribing of, pethidine (a Schedule 8 drug) and her failure to account for, improper administering and prescribing of, Sustanon 250 amp and Deca-durabolin (both prescribed restricted substances). (2)Unsatisfactory professional conduct (under s 139B of the National Law) during the period from 1 January 2009 to 30 March 2010 arising out of Dr Della Bruna's inadequate medical record keeping for patients to whom she prescribed pethidine, Sustanon 250 amp or Deca-durabolin. (3)Professional misconduct (under s 139E of the National Law) arising out of the nature and/or repeated occurrences of unsatisfactory professional conduct as alleged and particularised in the first two complaints. 3It was common ground between the HCCC and Dr Della Bruna that she had admitted the substance, if not the entirety, of each complaint. In these circumstances, the parties submitted that it was appropriate and convenient for the Tribunal to inquire into whether the complaints had been made out and to receive submissions on the appropriate protective orders at the one hearing. As both parties supported this approach, the Tribunal was content to proceed on this basis. For completeness, it might be noted that the representatives of the HCCC sought and were granted, without any opposition from the respondent, the opportunity at the end of the evidence to consider the state of the evidence and admissions at that time and to seek instructions on the precise protective orders that the HCCC wished to seek. The HCCC availed itself of this opportunity. 4In carrying out its functions in this matter, the Tribunal has taken into account the seriousness of the allegations made by the HCCC and the gravity of the consequences of the protective orders the Tribunal might make. The matter has been approached having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and 362 and the requirement that the Tribunal be "comfortably satisfied on the balance of probabilities" in accordance with the Court of Appeal's decision in Bannister v Walton (1993) 30 NSWLR 699 at 711F and 712D. Transitional Matters 5These proceedings were originally commenced in the Medical Tribunal of New South Wales but had not been heard by the Medical Tribunal as at 1 January 2014. 6On 1 January 2014, the Civil and Administrative Tribunal of New South Wales (NCAT) was established and on its establishment the Medical Tribunal was abolished: see Civil and Administrative Tribunal Act 2013 (the Act), s 7 and cl 3 of Schedule 1. 7By operation of cl 7(1) of Schedule 1 to the Act, these proceedings are taken to have been duly commenced in NCAT and may be heard and determined by NCAT. For this purpose and under cl 7(3), NCAT has and may exercise all the functions which the Medical Tribunal previously had and the applicable legislation is that which would have applied if the NCAT legislation had not been enacted. Consequently, the National Law as in force at 31 December 2013 and the legislation applicable to the conduct the subject of the complaints at the time the conduct occurred apply in these proceedings. Non-publication Orders 8As the documentary material before the Tribunal contained the names and other personal information relating to patients of Dr Della Bruna which were, and should be treated as, confidential. The Tribunal made the following orders under cl 7 of Schedule 5D of the National Law to the following effect: (1)The names of the patients of Dr Della Bruna not be disclosed in the proceedings and that the anonymisation initials specified in the schedules [to the Further Amended Complaint] should be used. (2)For the purposes of Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014, no part of any document which contains the name or personal information relating to any past or present patient of the respondent [Dr Della Bruna] be disclosed or published. Background 9Dr Della Bruna graduated from the University of Melbourne as a Bachelor of Medicine and a Bachelor of Surgery in 1991 and was first registered as a medical practitioner on 16 December 1991. On 11 January 1994 she was first granted general registration as a medical practitioner in New South Wales. For 2 short periods, 20 to 27 October 2008 and 19 to 20 October 2009, the practitioner was not registered owing to the non-payment of the annual registration fee. Otherwise, she has been and remains until 30 September 2014 registered in New South Wales. 10Dr Della Bruna completed her internship at St Vincent's Hospital in Victoria in 1992 and was a Junior Resident Medical Officer at that hospital completing a number of rotations in 1993 including a 6 week rotation in the Intensive Care Unit (ICU) and an 11 week rotation in anaesthetics. In 1994 she moved to Sydney. Between 1994 and 1996 she practised part time in a General Practice in Bay Street, Double Bay, as well as working for a number of locum agencies as an Accident and Emergency Registrar, an Intensive Care Registrar and a Medical Registrar in various hospitals. 11From 1996 to 1999, she worked as Medical Registrar at Blacktown, Mount Druitt and Hornsby Hospitals, among others, and in the latter part of this period she was also an ICU Registrar at the National Capital Private Hospital in Canberra. In 1999, Dr Della Bruna took up a permanent position with Prince of Wales Private Hospital in ICU and primary care where she worked one week on and one week off until 2004. Whist it is not entirely clear, it appears that Dr Della Bruna may have also worked during this period in a cosmetic practice operated by Dr Scheibner. The Tribunal notes that there are references in the material before us to Dr Della Bruna having come to the attention of the Pharmaceutical Services Unit (PSU) in late 2001 during an investigation into Dr Scheibner's possible acquisition or use of pethidine while Dr Scheibner's authority to prescribed Schedule 8 drugs had been withdrawn. 12In 2004 Dr Della Bruna left her position at Prince of Wales Private Hospital to pursue an interest in cosmetic medicine, including laser hair removal, peels and other treatment. She worked in the practice of Dr Scheibner in Double Bay called Eternally Young. At this clinic Dr Della Bruna carried out cosmetic treatments and was involved in the use of pethidine as an analgesic in relation to those treatments. In oral evidence Dr Della Bruna said that she learned on the job from Dr Scheibner. 13In early 2008, the doctor left Eternally Young to establish her own cosmetic practice at the Wellness Clinic initially in New South Head Road, Edgecliff and subsequently in Edgecliff Rd, Woollahra. At about this same time, Dr Della Bruna returned to work at Prince of Wales Private Hospital on a part time basis to supplement her income while trying to establish her cosmetic practice. 14In order to start her own practice in 2008 at the Wellness Clinic, Dr Della Bruna purchased a Lightseer diode laser machine for laser hair removal treatment. In addition, she also provided trichloroacetic acid (TCA) skin peeling. For analgesia, the practitioner prescribed, and often obtained, for some of her patients undergoing extended sessions of laser hair removal or TCA skin peels, pethidine which she administered by intra-muscular injection. For some of her male patients at this clinic, Dr Della Bruna prescribed steroids, Sustanon 250 and Deca-durabolin. The doctor's records and keeping practices during the period from 1 January 2009 to 1 March 2010 were less than adequate and, indeed, they were described by the doctor herself as "chaotic". This was in part attributed to the lack of storage space at the Wellness Clinic as well as to the doctor's lack of organisation. 15Following the investigations of the PSU in early 2010 which have given rise to the complaints the subject of these proceedings and the PSU's contact with the doctor, she ceased providing laser hair removal treatment and TCA skin peeling. On 30 August 2010, under s 150 of the National Law, the Medical Council of New South Wales imposed conditions on her registration as follows: 1. To not prescribe, possess, supply or administer, any schedule 8 drugs, other than to prescribe for hospital patients in any hospital where she is working. Any such prescriptions must be ordered on hospital stationery. 2. The practitioner to authorise and consents to any exchange of information between the Medical Council of New South Wales and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions. 16Since about April 2010, Dr Della Bruna has been conducting a cosmetic medicine practice at the Refine Cosmetic Clinic in Bondi Junction focusing upon injections of dermal fillers such as Botox and Juvaderm. She also continues to work a weekly shift at Prince of Wales Private Hospital on Wednesday nights from 7 pm to 7 am and she provides cover for other shifts from time to time. In 2010, Dr Della Bruna began working at Brisbane Waters Private Hospital, for one or two shifts per week but this has recently been reduced to two 24 hours shifts at that hospital per month. Her position there is as a Senior Registrar/Career Medical Officer. 17At the Refine clinic, Dr Della Bruna works with a number of other medical practitioners including a plastic surgeon. The clinic has reception staff and a Practice Manager. Dr Della Bruna employs a personal assistant to assist with the paper work and she rents two large rooms, one for consulting that also holds all the files and paper work in a locked filing cabinet and one as a treatment room. The Complaint and the Admissions The Further Amended Complaint filed 5 March 2014 18The 3 complaints which are the subject of these proceedings are contained in the Further Amended Complaint filed on 5 March 2014. The 3 complaints or grounds of complaint in the Further Amended Complaint fall within s 144(b) of the National Law since they consist of two complaints that the practitioner has been guilty of unsatisfactory professional conduct and one complaint that the practitioner has been guilty of professional misconduct. 19"Unsatisfactory professional conduct" is relevantly defined in the National Law s 139B(1) as follows: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (a) Conduct significantly below reasonable standardConduct 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. (b) Contravention of this Law or regulationsA contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. ... (l) Other improper or unethical conductAny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 20"Professional misconduct" is defined in the National Law s 139E in terms which include: (1) For the purposes of this Law, professional misconduct of a registered health practitioner means- (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. Dr Della Bruna's Admissions 21Dr Della Bruna made two statements for the purposes of these proceedings, one dated 26 November 2013 and the other 3 March 2014. At the hearing she gave sworn evidence that the contents of those statements were true and correct. Those statements contained extensive admissions in relation to the 3 complaints and the particulars of those complaints. In addition, in her oral evidence Dr Della Bruna reiterated those admissions and elaborated upon them. At no point during that evidence did she resile from any of her admissions. In fact, she was asked if she had seen the Further Amended Complaint filed on 5 March 2014 and she agreed that she had. She was then asked whether she admitted all the particulars and whether she admitted that she had engaged in unsatisfactory professional conduct and professional misconduct as alleged in that complaint. To both questions she answered that she did. Dr Della Bruna's truthfulness as a witness was not challenged and the Tribunal accepts that in giving her evidence she was attempting to tell the truth as she perceived it. 22Since the HCCC does not press for any findings against the doctor going beyond what she has admitted, the Tribunal considers that the most appropriate course is to record what has been specifically admitted by Dr Della Bruna, by reference to the complaints and the particulars, and then to consider in the light of that material and the other evidence before the Tribunal whether it is satisfied to the requisite standard that the complaints as particularised have been made out. Complaint 1 23Complaint 1 involved allegations of unsatisfactory professional conduct under s 139B of the National Law by Dr Della Bruna on two bases, namely that she had: (i) engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by her in the practice of medicine is significantly below the standard reasonably expected or a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or the purported practice of medicine. 24In her statement of 26 November 2013, Dr Della Bruna stated: Complaint 1 (i) of unsatisfactory professional conduct within the meaning of Section 139 [sic, 139B] of the National Law is admitted (notwithstanding that certain Particulars are not admitted). Complaint 1 (ii) of unethical conduct is not admitted. 25There were 6 separate particulars given in respect of Complaint One and Dr Della Bruna has made certain admissions in relation to each particular. Particular 1 to Complaint 1 26Particular 1 to Complaint 1 was as follows: Between about 1 January 2009 and 30 March 2010, the practitioner did not account in her drug register, for pethidine ampoules (a Schedule 8 drug) received, supplied or administered as required by Clause 112 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) ('PTG Regulation'), and as set out in Schedule 1 to this Complaint. 27Clause 112 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (the PTG Regulation) provides: 112 Entries in drug registers (1) On the day on which a person manufactures, receives, supplies, administers or uses a drug of addiction at any place, the person must enter in the drug register for that place such of the following details as are relevant to the transaction: (a) the quantity of the drug manufactured, received, supplied, administered or used, (b) the name and address of the person to, from, or by, whom the drug was manufactured, received, supplied, administered or used, (c) in the case of a drug that has been administered to an animal or supplied for the treatment of an animal, the species of animal and the name and address of the animal's owner, (d) in the case of a drug that is supplied or administered on prescription: (i) the prescription reference number, and (ii) the name of the authorised practitioner by whom the prescription was issued, (e) in the case of a drug that has been administered to a patient, the name of the authorised practitioner (other than a veterinary practitioner) by whom, or under whose direct personal supervision, the drug was administered, (f) in the case of a drug that has been administered to an animal, the name of the veterinary practitioner by whom, or under whose direct personal supervision, the drug was administered, (g) in the case of a drug that has been administered by a person authorised to do so by an authority under Part 8, details of the circumstances requiring administration of the drug, (h) in the case of a drug that has been used by a person who is in charge of a laboratory, or is an analyst, the purpose for which the drug was used, (i) the quantity of drugs of addiction of that kind held at that place after the transaction takes place, (j) any other details approved by the Director-General. (2) Each entry in a drug register must be dated and signed by the person by whom it is made. (3) The Director-General may, by order in writing, exempt any person or drug of addiction, or any class of persons or drugs of addiction, from any or all of the requirements of this clause. (4) Such an exemption may be given unconditionally or subject to conditions. Maximum penalty: 20 penalty units or imprisonment for 6 months, or both. 28In her statement of 26 November 2013, Dr Della Bruna said "I admit this particular". From Schedule 1 to the Complaint and from the documentary material referred to in that schedule (which was before the Tribunal) it appears, and the Tribunal accepts, that approximately 1,750 ampoules of pethidine supplied to Dr Della Bruna or dispensed on her prescription were not accounted for by her at all in her drug registers. 29The Tribunal notes that there is a slight discrepancy in the figures in Schedule 1 to the Complaint in that, although it is said that 1,854 ampoules of pethidine were dispensed by Bronte Pharmacy for scripts written by the doctor and 20 were dispensed by Furley's Pharmacy, the total of such ampoules was said to be 1,869, not 1,874. This discrepancy may have occurred when data was transferred from the spreadsheets behind tabs 34 and 35 of Exhibit A to the spreadsheet behind tab 40. The Tribunal does not believe that this slight discrepancy has any significant effect on the conclusions it has reached. It can be noted that this and other discrepancies as to the exact quantities involved were not raised as an issue by the parties. 30In further amplification of this admission, Dr Della Bruna in her statement of 3 March 2014 gave evidence that the drug registers that she kept (which were in evidence before the Tribunal) recorded supplies of ampoules of pethidine she received from the wholesaler, Clifford Hallam Healthcare Pty Ltd (Clifford Hallam). They did not record pethidine dispensed through Bronte Pharmacy and Furley's Pharmacy and administered by her in the treatment of her patients. She went on to concede expressly that the drug registers were deficient as she only recorded the Clifford Hallam supplies and not pharmacy supplies. Whist this may be approximately correct, the figures in Schedule 1 to the Complaint indicate that Dr Della Bruna obtained 2,105 ampoules of pethidine from Clifford Hallam but 2,200 ampoules were referred to in the drug register. Once again the Tribunal does not believe that anything turns upon this discrepancy. 31Dr Della Bruna also explained that records of pethidine dispensed through the two pharmacies were contained in the treatment sheets she retained for her patients, some of which were in evidence before the Tribunal. These treatment sheets had spaces to record the patient's name and telephone number and some recorded additional information such as date of birth, address, hepatitis or HIV status and blood pressure. The sheets also contained columns headed: Date; Treatment; Area; Setting/Strength; Analgesia; Fees $; and Comments. The amounts of pethidine administered or discarded were noted in the column headed "Analgesia". It appears that Dr Della Bruna has only been able to locate records or treatment sheets for 56 patients. Whilst she believed this was most of the relevant patients, she apparently has not been able to locate records for all patients. It was suggested that this was because the Wellness Clinic had closed down and the records from that clinic were not available, some records had been misfiled and other records might be in storage either in Sydney or Melbourne. 32In the light of the admission made, the drug registers and the documents before the Tribunal relating to the pethidine prescribed and obtained by Dr Della Bruna, the Tribunal finds that Dr Della Bruna failed to account in her drug registers for a very significant number of pethidine ampoules received, supplied or administered by her, as required by cl 112 of the PTG Regulation. The Tribunal is also finds that this failure continued for a sustained period of some 15 months, between about 1 January 2009 and 30 March 2010, and was only addressed by her after the investigation by the PSU. 33Accordingly, the Tribunal is satisfied that the matters alleged in Particular 1 to Complaint 1 have been made out. Particular 2 to Complaint 1 34Particular 2 to Complaint 1 was as follows: Between about 1 January 2009 and 30 March 2010, the practitioner prescribed and/or administered pethidine (a Schedule 8 drug) to patients referred to in Schedule 3A and 3B to this Complaint: a. in a quantity that did not accord with the therapeutic standard as provided by Clause 79 of the PTG Regulation - b. of what was appropriate in the circumstances and/or c. without exercising responsible medical judgment as to whether it was appropriate to so prescribe and/or administer pethidine in a quantity that did not accord with the recognised therapeutic standard. 35Clause 79 of the PTG Regulation provides: An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty: 20 penalty units or imprisonment for 6 months, or both. 36In her statement of 26 November 2013, Dr Della Bruna said: I have reflected on the way in which I prescribed and used pethidine and I concede that it was not appropriate. Although it was effective and I tried to use IM injection as an extrapolation of how it was used in the hospital setting, as an effective form of analgesia, I concede that this approach was not appropriate in a cosmetic private practice setting. ... I admit that I administered pethidine in a manner that did not always accord with recognised therapeutic standard, taking into consideration the MIMS recommendations for use and the opinion of the HCCC peer reviewer. Whilst I considered that it was an efficacious analgesic to administer, the use of IM pethidine for a procedure such a hair removal does not accord with recognised therapeutic standards, certainly not in all cases. On reflection of the quantities prescribed and used I accept that the quantities were excessive in the circumstances when viewed in totality. 37Once again this was amplified in her supplementary statement of 3 March 2014 as follows: I note the comments of the peer reviewer Dr Rish that I was using pethidine for a treatment that did not warrant narcotic analgesia. I agree that I should not have attempted the kind of treatment I was doing in the setting of the clinic, if it was so painful that narcotic analgesia was warranted. I did not give proper consideration to the difference between hospital and out of hospital settings. I agree I failed to administer dosages of pethidine according to MIMS, and failed to give adequate consideration to the risks associated with pethidine use, such as misuse, diversion, potential for addiction. I did not think that any of my patients were misusing, diverting, or had developed a dependence on, this drug. But I agree that I did not properly consider all aspects of using pethidine for pain relief in a cosmetic setting. 38The "HCCC peer reviewer" referred to by Dr Della Bruna, was Dr Adam Rish, a medical practitioner conducting a cosmetic medicine practice known as Laserase at Bondi and a Member of the Cosmetic Physicians Society of Australasia. The Tribunal had before it 3 reports from Dr Rish dated 17 January 2011, 26 April 2011 and 26 May 2011. 39The last report was accompanied by a table headed "Expert Table" dated and signed by Dr Rish on 26 May 2014. That table was a list of 55 patients with information as to the "Total treatment days", "Number of treatments" and "Av dose per treatment" for each patient. Two columns were left for Dr Rish to complete and these were headed "Quantity in accordance with the standard?" and "Purpose in accordance with the standard?". In all cases except one, Dr Rish records his opinion that the quantity was not in accordance with the standard by writing the letters "NA" for "not acceptable" in the relevant column. The report of 26 May 2014 contained the following opinions and explanation of the Expert Table: As in my previous letters, as I consider the use of Pethidine to be rarely warranted for laser hair removal, so it is questionable as to whether any of Dr Della Bruna's prescribing of Pethidine accords with the therapueutic standard. As her notes are of poor quality and give no indication of treatment length it is especially hard to assess whether any particular patient could be considered for this rare justification. (Given the low fluences used in treatments it seems unlikely that any of these patients would justify Pethidine usage.) Given the level of uncertainty of purpose for using Pethidine in any individual patient I have marked the attached chart named Expert Table with the sign of "?" in the column marked "Purpose". What is certain is that no patient would require more than 1 ampoule of Pethidine per session for this treatment. This also applies to TCA peeling, which has pain of short duration, so no patients could be considered to accord with the accepted standard when given more than 100mg of Pethidine at a session. Given the uncertainty re justification of patients given even single ampoules of Pethidine at treatment sessions I have marked on the accompanying expert table with the initials NA for Not Acceptable for each patient given more than 1 ampoule average of Pethidine per session. The other issue is the frequency of treatment with Pethidine due to the problem of inducing patient dependence. Although it would be hard to actually make an absolute figure for all cases it would be prudent for elective procedures such a laser treatments carried out on a regular basis to not give Pethidine (even when justified) at less than 4 weekly intervals. This should not be a problem as usually hair removal is carried out a 2-3 monthly intervals anyway. In that a large percentage of patients have been given Pethidine at a less than monthly regular intervals Dr Della Bruna has also departed from the therapeutic standard. So in answer to questions: 1. The purpose of Dr Della Bruna's prescribing of Pethidine does not accord with the Therapeutic Standard. 2. The quantity of Dr Della Bruna's prescribing of Pethidine does not accord with the Therapeutic Standard in the patients marked by a NA in the chart marked Expert Table. 40In addition, a further table annotated by Dr Rish's was also in evidence which dealt with the additional question of the frequency of prescribing. This table was Schedule 3B to the Complaint. This table was headed "Summary of pethidine administration as per medical records" and relevantly recorded, in respect of each patient identified in the table, Dr Rish's opinion on two questions: (1)Was the frequency of prescribing a significant departure from the Standard? (2)If a departure are you severely critical? 41In the case of 21 patients out of the 54 listed, Dr Rish answered yes to both those questions. 42Dr Della Bruna's counsel did not cross examine Dr Rish and did not seek to challenge any of his opinions and conclusions. 43In her oral evidence Dr Della Bruna made a concession to the effect that it was completely inappropriate for her to have extrapolated narcotic use in hospital to the private setting. In response to questions from the Tribunal Dr Della Bruna also explained that she had adopted the use of narcotic analgesia as she did in the relevant period because of her training and experience under Dr Scheibner's mentoring in the Eternally Young practice. Treating her patients as she did using pethidine, she acknowledged, amounted to "awful judgment" and she accepted that the dosages she gave were excessive. From her evidence, the Tribunal accepts that her understanding now is that if the laser hair removal or skin peel treatment was so painful that it required narcotic analgesia of the nature and extent administered by her in 2009 and early 2010, she should not have provided the treatment. 44Given the extensive admissions made by Dr Della Bruna it is not necessary to set out in detail the effect of all of Dr Rish's evidence. The Tribunal accepts Dr Rish's opinions and conclusions and has taken them and the material upon which they were based into account in reaching its conclusions in this matter. It is sufficient to refer to the material quoted above from his 26 May 2011 report. 45On the basis of the admissions and the other material before the Tribunal, the Tribunal finds that the allegations in Particular 2 to Complaint 1 have been made out. Particular 3 to Complaint 1 46Particular 3 to Complaint 1 was as follows: Between about 1 January 2009 and 30 March 2010, the practitioner issued prescriptions for pethidine (a Schedule 8 drug) in contravention of Clause 80(1)(c) of the PTG Regulation, in that the prescriptions failed to properly provide the quantity of pethidine to be prescribed in words, as set out in Schedule 4 to this Complaint. 47Schedule 4 was a list of 8 prescriptions for pethidine which were said to have failed properly to provide the quantity of pethidine. Dr Della Bruna's prescriptions for pethidine were also before the Tribunal. 48Clause 80(1)(c) of the PTG Regulation provides: (1) A person who issues a prescription for a drug of addiction must ensure that the prescription includes the following details: ... (c) the name, strength and quantity (expressed in both words and figures) of the drug to be supplied, ... 49In her statement of 26 November 2013, Dr Della Bruna stated in relation to this particular: It was always my practice to write out, in words, the name and quantity of the pethidine, and the quantity in figures, as required by the regulations. I concede that, in these few cases, I neglected to write both words and numbers. 50Having regard to all this material, the Tribunal is satisfied that the allegations in Particular 3 to Complaint 1 were made out. Particular 4 to Complaint 1 51Particular 4 to Complaint 1 was as follows: Between about 1 January 2009 and 30 March 2010, the practitioner issued prescriptions for pethidine (a Schedule 8 drug), in contravention of Clause 80(1)(h) of the PTG Regulation, in that the prescriptions failed to properly provide the address and the telephone number for the practitioner's premises at which the prescriptions were issued, as set out in Schedule 5 to this Complaint. 52Schedule 5 to the Complaint contained a list of 74 prescriptions which were said not to provide properly the address and phone details as required. It was also recorded in that schedule that the prescriber pads which had been used related to 4 other medical practitioners. 53Clause 80(1)(h) of the PTG Regulation provides: (1) A person who issues a prescription for a drug of addiction must ensure that the prescription includes the following details: ... (h) if the prescription is issued elsewhere than at a hospital, the name and designation of the person by whom it is issued and the address and telephone number of the premises at which it is issued. ... 54In her statement of 26 November 2013, Dr Della Bruna gave evidence in relation to this particular 4 as follows: Sometimes for convenience, I used prescription pads and forms that were not always my own, and put my own details on them. For example, I crossed out the name of the practitioner and put my own name and details, including provider number, as I thought this was permissible. I concede that I may not have always put both the address and the telephone number of the premises on each prescription. 55The material before the Tribunal included numerous examples of prescriptions by Dr Della Bruna using prescription pads with other medical practitioners names printed on them which Dr Della Bruna had crossed out and handwritten her name and prescriber number on the form. In those cases, the address and telephone number of Dr Della Bruna's premises where the prescription was issued were not added by her. 56The Tribunal is satisfied that, on a significant number of occasions in the period from about 1 January 2009 to 30 March 2010, Dr Della Bruna issued prescriptions for pethidine (a Schedule 8 drug), in contravention of cl 80(1)(h) of the PTG Regulation and that the allegations in Particular 4 to Complaint 1 have been made out. Particular 5 to Complaint 1 57Particular 5 to Complaint 1 was as follows: Between about 1 January 2009 and 30 March 2010, the practitioner contravened Clause 38 of the PTG Regulation in that she failed to account for her possession of prescribed restricted substances and/or to keep any record of prescribing and/or administering prescribed restricted substances being: a. Sustanon 250Amp obtained by the practitioner by direct order from Clifford Hallam Healthcare Pty Ltd, trading as CH2 as set out in Schedule 6 to this Complaint; and b. Deca-durabolin obtained by the practitioner by direct order from Clifford Hallam Healthcare Pty Ltd, trading as CH2 as set out in Schedule 6 to this Complaint. 58Clause 38 of the PTG Regulation provides: (1) An authorised practitioner who prescribes a prescribed restricted substance must make a record of the following particulars: (a) the name, strength and quantity of the substance prescribed and the date on which it was prescribed, (b) if the substance is intended for the treatment of a person, the name and address of the person to be treated, (c) if the substance is intended for the treatment of an animal, the species of animal and the name and address of the animal's owner, (d) the maximum number of times the substance may be supplied on the prescription, (e) in the case of a prescription for a special restricted substance, the intervals at which the substance may be supplied on the prescription, (f) the directions for use, as shown on the prescription. (2) The record must be kept at the surgery, hospital or office of the person prescribing the substance. Maximum penalty: 15 penalty units. 59There was no dispute that Sustanon 250 and Deca-durabolin were prescribed restricted substances for the purpose of cl 38. 60Dr Della Bruna's response to this particular in her statement of 26 November 2013 was as follows: I do not agree that I failed to keep any records. I have not been able to locate and produce all the relevant records, and I concede I have not kept the records in accordance with my obligations to keep prescription records. 61From the material before the Tribunal, the Tribunal concludes that whilst Dr Della Bruna did keep some records in respect of her patients who were treated with Sustanon 250 and Deca-durabolin, she was correct to concede that she had not kept the records in accordance with her obligations as set out in cl 38 of the PTG Regulation to keep prescription records. 62Accordingly, the Tribunal is satisfied that the allegations in Particular 5 to Complaint 1 have been made out to the extent that between about 1 January 2009 and 30 March 2010, Dr Della Bruna did not account for her possession of Sustanon 250 and Deca-durabolin or keep records of prescribing or administering those substances, in accordance with cl 38 of the PTG Regulation. Particular 6 to Complaint 1 63Particular 6 to Complaint 1 in the Further Amended Complaint filed on 5 March 2014 was as follows: Between about 1 January 2009 and 30 March 2010, the practitioner failed to identify the clinical indications for treating patients with Sustanon25 AMP and/or Deca-durabolin in her records for patients treated with those prescribed substances. 64In the earlier form of the Complaint, Particular 6 to Complaint 1 stated: Between about 1 January 2009 and 30 March 2010, the practitioner contravened Clause 54 of the PTG Regulation in that she supplied prescribed restricted substances in a quantity and/or for the purpose that did not accord with the recognised therapeutic standard that was appropriate in the circumstances in that she obtained Sustanon 250 Amp and Deca-durabolin (both anabolic steroids) as set out in Schedule Six to this Complaint and her medical records do not reflect any quantity or appropriate therapeutic purpose for the supply of those substances. 65Clause 54 of the PTG Regulation provides: An authorised practitioner or pharmacist must not supply any restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty: 20 penalty units or imprisonment for 6 months, or both. 66Dr Della Bruna's statement of 26 November 2013 contained the following specifically in relation to the earlier form of Particular 6: I prescribed both Sustanon and Deca-durabolin for a few patients who, in my opinion, required it. Dr Rish concedes, in the case of [patient AAAAAB], that the medication was indicated. My prescribing does not indicate a breach of standards in terms of quantity prescribed. It is the absence of appropriate record keeping that invites criticism. I have already conceded my record keeping fails to accord with my obligations under the regulations. 67In her statement of 3 March 2014, Dr Della Bruna made an admission in paragraph 15 in relation to Particular 6 as follows: I admit my records do not identify the clinical indications for the treatment and fail to comply with the Regulations. I admit this Particular and this Complaint. 68This had been preceded in paragraphs 9 to 14 of the 3 March 2014 statement, however, by an explanation by Dr Della Bruna in the following terms: 9. In relation to Complaint 1, Particular 6: I recall treating about 6-8 patients with steroids, who received injections about fortnightly. 10. I have been able to identify 5 patients for whom I prescribed Deca-durabolin and Sustanon. They are: [patient name 1] (Date of Birth xx/1933) [patient name 2] (xx/1936) [Patient AAQ] (xx/1969) [Patient AAAF] (xx/1927) [patient name 3] (xx/1982) 11. All the patients for whom I prescribed steroids had clinical indications for this treatment, such as testosterone deficiency, elevated luteinising hormone, osteoporosis, loss of skeletal muscle mass. Annexed (Tab 2) are copies of some of the records for patients listed above which I have recently located. 12. I have read the comments of Dr Rish, HCCC peer reviewer. [patient name 1] and [patient name 2] were elderly. [Patient AAAF], aged 82, in 2009, was referred for specialist treatment in 2006 from an endocrinologist, Dr James Homes-Walker, who had treated him since 2001. He confirmed low testosterone, and osteoporosis for which Deca-durabolin and Sustanon were appropriate medications. Those were administered by intra muscular injection of 50 mg (Deca-durabolin) 13. [Patient AAQ], age 40 in 2009, had a persistently reduced testosterone level, below normal range in January 2009. He was obese at approximately 110 kg in weight. He was not a body builder. 14. According to Schedule 6 in the Complaint, in the period 1 January 2009 - 11 March 2010, I received a total of 228 ampoules of Sustanon and Deca-durabolin in equal quantities. Assuming that each patient received an injection fortnightly throughout that period, that would indicate approximately 7 patients received such treatment. There were at least 2 or 3 patients receiving both Sustanon and Deca-durabolin concurrently, which is why it was ordered together. 69As the Tribunal understands the position, the amendment to Particular 6 to Complaint 1 in the Further Amended Complaint filed on 5 March 2014 was made so that in its amended form Particular 6 would accord with the admissions that Dr Della Bruna was prepared to make in this regard. 70Accordingly, the Tribunal is prepared to conclude, having regard to Dr Della Bruna's admissions and the documents before the Tribunal in relation to the relevant patients, that the allegations in the amended form of Particular 6 to Complaint 1 have been made out. Conclusions on Complaint 1 71In the light of our findings in respect of each particular to Complaint 1 and Dr Della Bruna's admission of Complaint 1(i) in her statement of 26 November 2013 (quoted above), the Tribunal finds that Dr Della Bruna engaged in unsatisfactory professional conduct within s 139B of the National Law in that during the period from about I January 2009 to 30 March 2010 she engaged in conduct that demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her in the practice of medicine was significantly below the standard reasonably expected or a practitioner of an equivalent level of training or experience. 72In her statement of 26 November 2013, Dr Della Bruna expressly did not admit "Complaint 1(ii) of unethical conduct". Since the HCCC did not seek findings that went beyond the admissions made by Dr Della Bruna, the Tribunal will not consider this aspect of Complaint 1 any further. Complaint 2 73Complaint 2 involved allegations of unsatisfactory professional conduct under s 139B of the National Law by Dr Della Bruna on two bases, namely that she had: (i) engaged in conduct that demonstrates that the care exercised, by her in the practice of medicine is significantly below the standard reasonably expected or a practitioner of an equivalent level of training or experience; and/or (ii) contravened the Medical Practice Regulation 2008 (NSW)(repealed). 74The particulars to Complaint 2 were as follows: 1. Inadequate record keeping: Between about 1 January 2009 and 30 March 2010: (a) The practitioner prescribed pethidine to patients, as set out in Schedule 2 to this Complaint, for whom she did not create any medical records, in contravention of Clause 4 and 5 of the Medical Practice Regulation 2008 (NSW)(repealed); (b) The practitioner prescribed pethidine (a Schedule 8 drug) to patients, as set out in Schedule 2 of this Complaint, for whom she did not create any medical records, in contravention of Clause 82 of the PTG Regulation; (c) The practitioner did not adequately record in patient records, the therapeutic purpose for the supply and/or quantity of Sustanon 250 Amp and Deca-durabolin. 75Clauses 4 and 5 of the Medical Practice Regulation 2008 relevantly provided: 4 Records relating to patients (1) A registered medical practitioner or medical corporation engaged in the provision of medical services must, in accordance with this Part and Schedule 1, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or corporation. ... Note. Although contravention of this clause is not an offence, section 36 of the Act provides that any contravention of the regulations by a registered medical practitioner is unsatisfactory professional conduct. ... 5 When records are to be made (1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards. (2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned. 76Clause 82 of the PTG Regulation provides: (1) An authorised practitioner who prescribes a drug of addiction must make a record of the following particulars: (a) the name, strength and quantity of the drug prescribed and the date on which it was prescribed, (b) if the drug is intended for the treatment of a person, the name and address of the person to be treated, (c) if the drug is intended for the treatment of an animal, the species of animal and the name and address of the animal's owner, (d) the maximum number of times the drug may be supplied on the prescription, (e) the intervals at which the substance may be supplied on the prescription, (f) the directions for use, as shown on the prescription. (2) The record must be kept at the surgery, hospital or office of the person prescribing the substance. Maximum penalty: 20 penalty units. 77In her statement of 26 November 2013, Dr Della Bruna gave evidence as follows: I do not admit that I failed to create any medical records for the patients as set out. However I do concede that I have been unable to locate those records and produce them and I accept that this is a failure of professional standards. I generally concede that my record keeping has not complied with the regulations regarding prescribing and medical record keeping, and admit to a complaint of inadequate record keeping. 78Earlier in that statement she explained some of the inadequacies in her record keeping as follows: 37. When I commenced solo practice, the rooms were shared with other practitioners and the doctor who owned the premises had only very limited space available, so there was insufficient room for storage. Therefore, on each occasion I had a consultation, I would have to bring everything I needed in my car, including equipment and medical records. I concede that this does not accord with good practice and that there was potential to lose documentation. 38. In January 2010, my car was broken into and some of my medical documentation was stolen, and other material and my phone. ... 39. When I left my previous practice I took my own patient notes but there were patients of the clinic whose records remained with the clinic. I have also moved my place of work or place of storage since then, and I have not been able to locate all the records/treatment sheets sought by the PSB and later by the HCCC. 40. I agree with the HCCC expert peer, Dr Rish, that my records resemble treatment sheets. As I was treating people for cosmetic procedures, such as hair removal and TCA peels, and not medical consultations, except in a few circumstances, it was the practice I adopted. However I understand that I should have been diligent in my record keeping if I was acting as a medical practitioner, rather than a cosmetic practitioner. 79The Tribunal also takes into account Dr Della Bruna's admission in her oral evidence to all the particulars and, in particular, that her records and record keeping were deficient. In addition in her oral evidence, Dr Della Bruna gave further information on how she kept some of her medical records, such as they were, during the relevant period in her motor vehicle and at her home because of a lack of storage space. 80Having regard to all of the documentary material before the Tribunal, her admissions and the oral evidence given by Dr Della Bruna, the Tribunal is satisfied to the requisite standard that this complaint 2 has been made out. Complaint 3 81Complaint 3 was an allegation that Dr Della Bruna was guilty of professional misconduct under s 139E of the National Law in that she had: (i) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or (ii) Engaged in more than one instance of unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. 82The particulars to complaint 3 were as follows: The Particulars of Complaint One and Two are relied upon both individually and cumulatively. 83In her statement of 26 November 2013, Dr Della Bruna did not admit this complaint. By 3 March 2014, however, she had come to accept that her conduct did constitute professional misconduct. In her second statement, she said: 16. In relation to Complaint 3: On reflection, my prescribing, record keeping and the way I conducted my general practice and cosmetic practice was very significantly below the standard expected of me and I now understand that the course of conduct reflected in the Complaints should be viewed as professional misconduct. I admit Complaint 3 of Professional Misconduct. 84The Tribunal is of the view that this admission was properly made by Dr Della Bruna. On the material before the Tribunal, it is very comfortably satisfied that the unsatisfactory professional conduct engaged in by Dr Della Bruna was of a sufficiently serious nature to justify suspension or cancellation of her registration. The Tribunal is also similarly satisfied that the instances of unsatisfactory professional conduct engaged in by her, especially those referred to in Particulars 1, 2, 5 and 6 of Complaint 1, when considered together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. 85On this basis the Tribunal finds that Complaint 3 has been made out. Protective Orders 86Having found that the subject matter of the 3 complaints against Dr Della Bruna set out in the Further Amended Complaint filed on 5 March 2014 has been proved, the Tribunal is empowered under s 149A of the National Law to do any one or more of the following in relation to the practitioner: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 87The Tribunal may also impose a fine under s 149B but only in the limited circumstances referred to in s 149B(2)(b). In addition, the Tribunal may suspend or cancel the practitioner's registration under s 149C(1) as it has found that Dr Della Bruna is guilty of professional misconduct. Applicable Principles 88In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1)In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2)Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3)The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4)Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5)Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]. 89Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held: ... However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ). 90In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]: The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA). 91This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practise - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant period. The Practitioner's Conduct 92The professional misconduct and unsatisfactory professional conduct of which the Dr Della Bruna has been guilty were serious. The conduct lasted for 15 months from about January 2009 to March 2010 and came to an end because of the action of the PSU. 93On the basis of our findings made above, her treatment of patients with pethidine administered by intra muscular injection in connection with laser hair removal and TCA skin peels was not in accordance with the appropriate therapeutic standards both as to quantity and purpose, even though her records were so poor that it was difficult for Dr Rish to determine in many cases whether the purpose of the treatment with pethidine was in accordance with the applicable therapeutic standard. Dr Rish also concluded that in a significant number of cases the administration of pethidine was not in accordance with the appropriate therapeutic standard as to frequency. Dr Della Bruna herself acknowledged the significant extent to which her clinical decisions in this regard departed from what could reasonably be expected from a practitioner of an equivalent level of training or experience. Her explanation that she adopted this form of treatment as she was extrapolating from her experience of the use of narcotic analgesia in hospital and because of her experience and training under Dr Scheibner does not lessen the seriousness of her conduct. 94The Tribunal also regards aspects of Dr Della Bruna's failures in relation to record keeping and prescribing which have been established in this case to have been serious departures from proper and required practice for a medical practitioner. Some of the matters proved, however, were less serious but nonetheless troubling. These included the failure to write the quantity in both words and numbers in prescriptions for pethidine and the failure to record the address and telephone number of the premises from which she operated on prescriptions. The Practitioner's Remorse, Insight and Rehabilitation 95Dr Della Bruna has expressed remorse in her evidence and in the manner in which she gave evidence. She has also shown remorse and some insight by the extensive admissions she has made. 96The changes she made in the nature and circumstances of her private practice after March 2010 also demonstrate remorse for, and insight into, the unsatisfactory nature of her previous clinical decisions and conduct. 97Since about April 2010, she has not carried out laser hair removal or deep skin peels. Dr Della Bruna has also submitted to the conditions imposed on her registration on 30 August 2010 by the Medical Council, under s 150 of the National Law, that she not prescribe, possess, supply or administer any schedule 8 drugs other than to prescribe for hospital patients in any hospital where she is working. There was no suggestion that this condition had not been complied with. 98The private clinic in which Dr Della Bruna has practiced since about April 2010 and in which she continues to practise, the Refine Clinic, is operated by a number of other medical practitioners including a cosmetic surgeon. It also employs a Practice Manager. Dr Della Bruna has rented two rooms which give her sufficient space to treat patients and to store her medical records securely. She also gave evidence that she has employed a personal assistant with responsibility for record keeping and filing, among other things. Examples of her patient records which she now keeps were also before the Tribunal. 99The Tribunal accepts that Dr Della Bruna has undertaken training and education considerably in excess of the minimum required in order to maintain her registration. In addition, she has enrolled in the Issues in General Practice Prescribing Course offered by Monash University which, if completed, will assist to ensure that her prescribing will not in future fall below the standard required of her as registered medical practitioner. 100This remorse and insight as well as the rehabilitative steps taken by Dr Della Bruna outlined above tend to reduce the need for suspension or deregistration in order to achieve the appropriate protection of the public. Other Aspects of Dr Della Bruna's Practice 101A further matter which the Tribunal takes into account is that Dr Della Bruna's practice as a medical practitioner has not been limited to a private cosmetic practice. As noted above, for about 5 years from 1999 to 2004, she held a permanent position in ICU and primary care at Prince of Wales Private Hospital. In about early 2008, she returned to work at that hospital on a part time basis. She continues to work a weekly 12 hour night shift at Prince of Wales Private Hospital and other shifts as required from time to time. She also works at Brisbane Waters Private Hospital for two 24 hours shifts per month as a Senior Registrar/Career Medical Officer. 102Dr Della Bruna put before the Tribunal a number of references relating to her work at those two hospitals. In the circumstances of this case, the Tribunal believes it is appropriate to quote at length from the reference provided by Professor Yahya Shehabi, Medical Director of the Acute Care Services Program of the Prince of Wales Private Hospital and the Director of the Intensive Care Services at Prince Henry and Prince of Wales Hospitals between 1993 and 2011. He is also a Fellow of the Australian and New Zealand College of Anaesthetists and a Fellow of the College of Intensive Medicine of Australia and New Zealand. In his letter prepared for the purposes of these proceedings and dated 25 September 2013 he wrote: 2. Over the past 15 years, I have worked in many intensive care units in the private and in the public sector. Dr Bruna occupied a position of Career Medical Officer (CMO) in the private sector intensive care units. Over the last 5 years she has also occasionally filled gaps in the intensive care registrars roster at the Prince of Wales and the Integrated Cardiothoracic ICU of the Prince of Wales Public and Private Hospitals. Dr Bruno [sic, here and hereafter throughout the letter] would be working under my direct supervision during the day time and providing immediate care to ICU patients after hours. 3. Dr Bruno was always trusted by the nursing staff in the ICUs she worked at. She was always seen as a reliable, safe, caring and competent registrar. There was no negative vibes about Dr Bruno; there was a general feeling of comfort among senior doctors when she was on duty. She was essentially viewed by senior doctors and nurses as a very good credible registrar and were happy to have her in the unit at any time. 4. I have known Dr Bruno over a number of years, I sincerely attest to her personal character as an honest doctor who is proud of her achievements. She was a shy person who would keep her personal issues outside the work place as she gave attention to her public face. She has never shown signs of any stress or psychological illness or signs of any illicit or recreational drug use. She has attended many functions for the different ICUs in particular Christmas dinners; she has never indulged in heavy alcohol drinking or any abnormal behaviour. Professionally, Dr Bruno was very reliable, showed compassion and integrity. She was always punctual, never mised a shift at work. I have witnessed Dr Bruno saving many lives in ICUs and in private hospital wards when she was the only doctor in the hospital. She knew her limitations and would seek help quickly when appropriate and take intiative as needed. While she would have been able to peruse [sic] a specialist career in either anaesthesia or intenstive care, Dr Bruno didn't take that option, not to lack of ability or drive but rather due to time course and commitment. 5. Dr Bruno worked extensively in an environment of high stress and rapid pace of change; she had access to all kind of restricted drugs such as narcotics and hypnotics. There was never a shadow that she has used these inappropriately. She would manage sedation of ICU patients while a senior doctor is performing a procedure such as endoscopy or a difficult catheterization. Dr Bruno always had a serious attitude to work, she was very hard working and her attitude to life in general is neither casual nor opportunistic. She would go out of her way to help others, very pleasant and easy to get on. She has stepped out of the critical care area as a registrar to peruse personal and professional development path during which I have had little contact with her. Nonetheless, I believe she is a person with good and sincere qualities who is able to admit wrong doing and learn from mistakes and get on with the next phase of her life. Dr Bruno is not a person who would get on the wrong side of the law in any form of premeditated manner. Her public face and reputation was always something she paid attention to. 6. Dr Bruno briefly discussed with me the matters before the Tribunal regarding a misconduct claim. She is devastated that the matter ended the way it has. She sincerely expressed regret and remore and had the issue risen again, she would certainly handle it differently. 7. I believe that Dr Bruno is a person who cares for her patients and would not negligently do anything to harm her patients. I believe Dr Bruno is a good doctor and should have the chance to self-remedy and continue on with her medical career. Finally, I would like to declare that the above is given based on my knowledege of Dr Bruno over the years up to 2010 and have had occasional contact with Dr Bruno over the last 3 years. 103Associate Professor Roger Allan, the Clinical Executive Director of Prince of Wales Hospital and a Fellow of the Royal Australasian College of Physicians, a Fellow of the Cardiac Society of Australia and New Zealand and a Fellow of the American College of Cardiology, also provided a reference dated 30 October 2013. He first met Dr Della Bruna in 2008 at the Coronary Care Unit of the hospital and notes that she still works intermittently within that unit. He stated that "[f]rom the professional viewpoint she is an excellent career medical officer with a broad knowledge of medicine particularly in cardiology. She provided a very critical analysis of a patient's condition and is always able to convey that straightforwardly. She undertakes urgent and appropriate management without delay. She always communicate appropriately with senior medical staff." 104Specifically in relation to the Complaint the subject of these proceedings, Professor Allan stated: Reading through the complaint made to the Medical Tribunal it really does seem out of all character for Dr Della Bruna who is a very competent and capable person and I am surprised that these matters are as described. I understand that she is still employed by the Prince of Wales Private Hospital and I would hope that this continues as she provides an excellent service as a career medical officer. 105In addition, references from Ms Annette Czerkesow, the General Manager of Brisbane Waters Private Hospital dated 16 October 2013, Dr Anne Gunner, a Career Medical Officer at Brisbane Waters Private Hospital dated 26 September 2013 and Dr Derek Chai, a Career Medical Officer at Prince of Wales Private Hospital dated 23 September 2013 were before the Tribunal and they were consistent with the references which have been quoted above. The Tribunal also takes into account the references from patients of Dr Della Bruna also put before us. 106These references give rise to an additional area of concern for the Tribunal. It is difficult to understand how Dr Della Bruna came to act and make the clinical judgments that she did in the period from about January 2009 to March 2010. Indeed, the practitioner herself was somewhat at a loss to explain how she could have found herself in such a position. The HCCC submitted that this demonstrated a certain degree of lack of insight. The Tribunal takes this concern into account but does not believe it justifies imposing protective orders that are more restrictive or punitive in effect than those which it proposes to make. Appropriate Protective Orders 107In the light of the time that has elapsed since the conduct the subject matter of the complaints ceased, the steps taken by Dr Della Bruna to establish and conduct her private cosmetic practice on a properly supported and structured basis, her willingness to continue to have conditions imposed on her registration restricting her ability to prescribe schedule 8 drugs, the education and training she has undertaken and proposes to undertake, the highly regarded performance of her duties as a Career Medical Hospital principally at Prince of Wales Private Hospital but also at Brisbane Waters Private Hospital and her remorse and insight, the Tribunal believes it would be inappropriate to suspend or cancel her registration. Such a course is not necessary to protect the health and safety of the public or to maintain the reputation of the profession in this case. As the HCCC submitted, there is no identified risk to patients the public or the medical profession arising from the practitioner's practice in hospitals. There is no proper basis for the Tribunal to be satisfied that the practitioner is not currently fit to practise. 108Nonetheless Dr Della Bruna's conduct was serious and protective orders are required, especially in regard to her practice outside hospitals. Consequently, for the protection of the public in relation to her practice outside hospitals, to mark out the extent to which her conduct fell short of the required standard and to encourage other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so, the Tribunal is of the view that a reprimand together with appropriate conditions on her registration are the minimum necessary. 109The conditions which are appropriate in this case relate firstly to whether Dr Della Bruna should be entitled to possess, supply, administer or prescribe any schedule 8 drug. Neither the HCCC nor the practitioner opposed the continuation of a condition preventing her from administering or prescribing etc such drugs and related conditions concerning changes to that condition and the exchange of information . This was appropriate in the light of the professional misconduct and unsatisfactory conduct established in this matter. 110Secondly, the HCCC submitted that Dr Della Bruna be permitted to practice only in hospital positions for 3 years from the date of the Tribunal's decision. On Dr Della Bruna's behalf it was submitted that there should be some restriction on her ability to practice but it should be limited to 2 years and she should be able to practice only in a hospital position or a position approved by the Medical Council of New South Wales. 111The Tribunal is of the view it is not necessary, in order to satisfy the purposes for which protective orders are made, effectively to prohibit Dr Della Bruna from practising anywhere but in a hospital position. There is no reason to conclude that Dr Della Bruna has not been practising in a competent and professional manner for the last 4 years in her cosmetic practice. It would, however, be appropriate to limit for a period the treatments that Dr Della Bruna might perform in such a practice so as to exclude those which gave rise to the inappropriate use of pethidine during 2009 and 2010. Given the seriousness of the lack of clinical judgment shown by Dr Della Bruna when in private practice during 2009 and 2010 and the failures in relation to record keeping, the Tribunal believes the period of such restriction should be 3 years. Such a length of time should not be inappropriately punitive as Dr Della Bruna stated in her evidence that she did not intend to perform laser hair removal treatment or TCA skin peels in her cosmetic practice. 112Furthermore, it is in our view appropriate for the conditions to include some guidance as to the type of practice in which Dr Della Bruna should be permitted to work during that 3 year period. The Tribunal formed the view in the light of what occurred and of Dr Della Bruna's oral evidence that her clinical failures and her chaotic record keeping were at least in part the result of the fact that she lacked other registered medical practitioners to whom she could turn for advice or mentoring when she was in private practice in 2009 and 2010. In addition, she lacked both the space and the administrative support which might have assisted her to keep her records and other documentation in a suitable manner. Accordingly, we think it is appropriate to include a condition requiring that her private practice be limited to ones in which there was at least 2 other medical practitioners, one of whom would be available on site or by telephone at all times, so that she might have a professional colleague to whom she could turn for advice or assistance. 113Thirdly, given the nature and extent of her clinical misjudgement displayed in the period from 2009 to 2010, we believe it is appropriate to include a condition requiring Dr Della Bruna to be formally mentored in accordance with the Medical Council of New South Wales's Guidelines for Mentors (Policy PCH 10.1). 114Fourthly, protection of the public requires that Dr Della Bruna's record keeping be adequately monitored. It would also be wise if Dr Della Bruna ensured that she had appropriate storage space and facilities in her private practice together with the support of a Practice Manager and an office or administration assistant to provide the required record keeping and administrative services so that her record keeping did not, once again, become chaotic. We do not, however, think it necessary to include those matters or storage and administrative assistance in the conditions. Nonetheless, protection of the public does in our view require that Dr Della Bruna's relevant medical record keeping should the subject of audit from time to time. Accordingly, we proposed to include such a condition in the orders. 115Fifthly, Dr Della Bruna gave evidence of having enrolled in the Monash University course "Issues in General Practice - Prescribing". It is to Dr Della Bruna's credit that she has enrolled in that course and the Tribunal considers it appropriate to impose a condition that she successfully complete that course. Costs 116The HCCC has sought an order that Dr Della Bruna pay costs. Clause 13 of Schedule 5D to the National Law relevantly provides: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. 117The principles to be applied by the Tribunal in exercise of its discretion to award costs under a provision such as cl 13(1) were considered by the Court of Appeal in Ohn v Walton (1995) 36 NSWLR 77. Regulation 27(1) of the Medical Practitioner Regulations which were the subject of that decision is substantially the same as cl 13(1). Gleeson CJ held at 79: Although a complaint before the Medical Tribunal is different in a number of respects from civil litigation, and from a summary prosecution for an offence, they are both examples of proceedings in which orders for costs may be made, and what has been said about costs in such proceedings offers guidance in the present context. 118Cole JA at 84 - 85 referred to comments by Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 542-3 and cited the passage from McHugh J at 568 that "even when the discretion [to award costs] is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against a successful party except for reason connected with the case". Cole JA went on to state at 85: Whether the Medical Tribunal be a court or not, the principles enunciated by Mason CJ and McHugh J are of general application and should be applied by a tribunal such as the Medical Tribunal, absent contrary legislation or regulation [citations omitted]. 119The HCCC was successful on each ground of complaint or complaint contained in the Further Amended Complaint. There was nothing in the conduct of the proceedings or the circumstances in which they were brought against the respondent which would render it not just and reasonable to award costs in the HCCC's favour in this case. Consequently, there will be an order for costs in favour of the HCCC. Final Orders 120For the reasons set out above, the Tribunal makes the following orders: (1)The respondent, Dr Albina Della Bruna, be and hereby is reprimanded. (2)The conditions set out below in the schedule headed "Health Care Complaints Commission v Dr Albina Della Bruna - Conditions" (the Conditions) be imposed on the respondent's registration (3)The Conditions may be altered, varied or removed at the discretion of the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). (4)Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the respondent's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of the Conditions can be conducted by the Medical Board of Australia. (5)The respondent pay the complainant's costs. Schedule Health Care Complaints Commission v Dr Albina Della Bruna - Conditions Practice Conditions 1. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW), other than to prescribe for hospital patients in any hospital where she is working. Any such prescriptions must be ordered on hospital stationery. 2. Any future change to the practitioner's Schedule 8 drug authority must be approved by the Medical Council of New South Wales, prior to the making of any application for variation to the Pharmaceutical Services Unit, Ministry of Health. 3. To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia, and the Pharmaceutical Services Unit for the purpose of monitoring compliance with these conditions. 4. For a minimum of 3 years from the date of this decision: (a) The practitioner is to practise only in a hospital position, or a position approved by the Medical Council of New South Wales. (b) If the practitioner performs cosmetic procedures, she is not to perform TCA skin peels or laser hair removal. (c) She is to work in a practice where: (i) There are at least 2 or more medical practitioners, in addition to the subject practitioner. (ii) There is always one other registered medical practitioner on site or available by telephone. 5. To obtain Medical Council of New South Wales approval prior to changing the nature or place of her practice. Audit 6. If practising outside of a hospital, the practitioner to submit to an audit at her premises, of a random selection of her medical records by a person or persons nominated by the Medical Council of New South Wales to assess her compliance with the relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010 (Part 4 and Schedule 2), the RACGP's Standards for General Practices (4th edition), in particular Standard 1.7 'Content of Patient Health Records' with particular attention to her assessment of patients, and treatment plans and her compliance with her conditions and: (a) 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; (b) The practitioner is to authorise the Auditor/s to provide the Council with a report on their findings; and (c) The practitioner is to meet all costs associated with the audit/s and any subsequent reports. Mentoring 7. Within 28 days of the date of this decision, the practitioner is to provide for approval by the Medical Council of New South Wales the name and professional address of a registered medical practitioner who has agreed to act as her professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Medical Council of New South Wales's Guidelines for Mentors (Policy PCH 10.1). The mentor is to be provided with a copy of the Guidelines and a copy of this Decision. Further: (a) She is to authorise the mentor to report, in an approved format, to the Medical Council of New South Wales every three months about the fact of contact, and to inform the Council if there is any concern about her professional conduct, or personal wellbeing. (b) She is to authorise the mentor to notify the Council of any failure to attend, termination of mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. (c) She will meet with the mentor for an initial period of 2 years from the date of the first consultation and thereafter for such period as the Council may determine. She is to authorise the mentor to notify the Council when the mentor is of the view that professional mentoring is no longer required. (d) In the event that the approved mentor is no longer willing or able to continue as a mentor, she is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. (e) She is to be responsible for any costs associated with the mentoring process. (f) The meetings should include discussion of Dr Della Bruna's personal and professional development as a registered medical practitioner and medical practice issues as they arise and initially the issues highlighted in this Decision and then any personal and/or medical practice issues that may arise. Monash University Course 8. Within 12 months of the date of this decision, to complete at the practitioner's own expense, the course "Issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Victoria and: (a) Within one month of completing the course, the practitioner is to provide documentary evidence to the Medical Council of NSW that she has satisfactorily completed the course. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 08 April 2014