Health Care Complaints Commission v Bennett [2014] NSWCATOD 46

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bennett [2014] NSWCATOD 46 Hearing dates: 7 April, 2014 Decision date: 06 May 2014 Jurisdiction: Occupational Division Before: F Marks ADCJ - principal member Dr E Kertesz- medical member Dr E Kok - medical member Russell Smith - lay member Decision: 1. Dr David John Bennett is disqualified from being registered as a medical practitioner for a period of five years from this date. 2. Dr Bennett is to pay the costs of the HCCC 3. The Medical Board of Australia is directed to record in the national register kept by the Board the fact that the Tribunal would have cancelled the registration of Dr Bennett. Catchwords: MEDICAL PRACTITIONER;PROFESSIONAL MISCONDUCT; UNSATISFACTORY PROFESSIONAL CONDUCT Legislation Cited: Poisons and Therapeutic Goods Regulation 2008 (PTG Regulation) Health Practitioner Regulation National Law (NSW) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Representation: Counsel

Reg Graycar (Applicant) G M Gregg (Respondent) Health Care Complaints Commission (Applicant) H W L Ebsworth (Respondent) File Number(s): 1420080-1420081 Publication restriction: Order made prohibiting publication of patient details

reasons for decision 1The Tribunal has before it two notices of complaint brought by the Complainant, Health Care Complaints Commission against the Respondent Dr David John Bennett. Each of the complaints particularises certain conduct of the Respondent committed in his practice as a medical practitioner. 2The first complaint dated 1 August 2012 covers a period commencing 27 May 2008 and ending 12 October 2010. There is an allegation relating to the prescribing of drugs. During this period the Respondent prescribed certain "drugs of addiction" and Schedule 8 drugs to a large number of patients who were then currently on an opioid treatment program. It is alleged that the prescription of these drugs was inappropriate, outside clinical guidelines, and was prohibited without an authority which he did not possess. In the same way it is alleged that the Respondent prescribed benzodiazepines to a large number of patients who were or had been on an opioid treatment program, and others who had not been on such a program in circumstances where it was outside therapeutic guidelines to do so and that all of this conduct was inappropriate and outside clinical guidelines. Furthermore, it is alleged that the Respondent prescribed Section 8 opioid drugs on a long-term basis, and a Schedule 8 stimulant drug without proper authority. Finally, the Respondent is alleged to have prescribed certain medications and drugs to patients who were a close relative inappropriately and outside clinical guidelines for prescribing to relatives. 3Within the first complaint there is a second allegation to the effect that the Respondent failed to maintain adequate medical records covering a large number of patients, and that he did not adequately record information relevant to diagnosis and treatment, medical history, the results of physical examinations, treatment plans and advice. 4It was complained that by reason of the matters referred to above, the Respondent was guilty of professional misconduct in that he had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or he had engaged in more than one instance of unsatisfactory professional conduct such that when the instances were considered together, they amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. 5In an Agreed Statement of Facts filed in the proceedings by solicitors retained by both parties, the Respondent admitted the factual matters which we have summarised above and acknowledged that by reason of the matters set out in the first part of the complaint, he was guilty of unsatisfactory professional conduct in that he had; 1. "demonstrated that the knowledge, skill or judgement possessed, or the care exercised by him in the practice of medicine, is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; or 2. engaged in improper or unethical conduct in the practice of medicine." 6Furthermore, the Respondent acknowledged that by reason of the matters set out in the second part of the complaint that he was guilty of unsatisfactory professional conduct in that he had; "1. engaged in conduct that demonstrates that the care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; or 2. contravened the Medical Practice Regulation 2003 (NSW) and/or the Medical Practice Regulation 2008 (NSW), both of which are now repealed." 7Finally, by reason of all of the matters contained in this complaint, the Respondent acknowledged that he had been guilty of professional misconduct in that he had; "1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct such that when the instances are considered together, they amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration." 8Even though each of these acknowledgements is expressed in the alternative, we understand that they are intended to reflect an acknowledgement which extends to each of the two parts referred to above. 9The second notice of complaint is dated 1 August 2012. It covers a period commencing January 2008 and ending November 2011. It also covers a large number of patients. The conduct complained of is a replication of the type of conduct set out in the first notice of complaint, with one fundamental qualification. On 4 May 2010, the Respondent signed statements agreeing to orders being made under the Poisons and Therapeutic Goods Regulation 2008 (PTG Regulation) the effect of which would prohibit him from prescribing Schedule 8 drugs and Schedule 4 drugs being, in essence drugs of addiction and restricted substances respectively. An order was made under the PTG Regulation on 10 June 2010 prohibiting him from prescribing these drugs. His registration was endorsed with practice conditions to this effect. During the period commencing 18 June 2010 and until November 2011 it was alleged that the Respondent prescribed these drugs in breach of his registration conditions and in breach of the order made under the PTG Regulation. Accordingly, this second notice of complaint contains allegations covering inappropriate prescribing of medication and contravention of conditions of registration as well as failure to maintain proper medical records of patients. 10As with the first notice of complaint, an Agreed Statement of Facts was also filed in the proceedings by solicitors retained by the parties. It also contains an admission of the factual matters contained in the notice of complaint and acknowledgements in the same terms as set out above in the first notice of complaint. 11That Agreed Statements of Facts contained some additional information concerning the background to the practice of medicine by the Respondent. He qualified as a medical practitioner in 1966 and has been a general practitioner in four different practices since completing his formal training. He most latterly commenced practice at a suburban medical Centre in 2007 and remained there until he ceased practice in 2013. His registration expired on 30 September 2013 and he has not sought to renew his registration since that date. 12We were informed by counsel representing the parties that in the aggregate there were at least 140 patients of the Respondent whose treatment is covered by both notices of complaint. 13In a letter dated 27 July 2011 forwarded by the Respondent to the Complainant, which was admitted into evidence he provided some additional information concerning his practice as a General Practitioner. Until about 4 to 5 years prior to that date he had practised in a rural practice in northern New South Wales. He then worked in a general practice in Sydney suburb, owned by a corporation. He said that he was engaged full-time on contract and there were about eight doctors in all engaged in the practice, most of whom were working on a part-time basis. He said that until he himself started working part time after August, 2010 that on some days he was the only doctor in attendance at the practice. In describing the management of the practice he said that; "it was the habit of, and expectation of the admitting staff at the practice, to allocate five patients an hour to each doctor, and, to "double book" patients for each doctor - particularly patients who arrived at the practice without an appointment. There were many casual attendances of patients to the practice and many patients who attended without appointments." In describing the nature of the practice, he said that it was quite different to what he had encountered in a rural practice and that there were; "many elderly patients with chronic conditions, many patients with depression or mental health issues, many patients with complaints of pain or chronic pain syndromes, and there were a lot of casual patient attendees from suburbs close to the practice. Prescribing of schedule 8 and 4 drugs was more common to meet the needs of these patients than had been my experience with patients (in the rural practice)." 14There was admitted into evidence in the proceedings three statements of the Respondent and a character reference. The Respondent's statements contain an explanation as to why he engaged in the conduct set out in the notices of complaint as acknowledged by him. In summarising the essence of the explanation, we should not be seen to be trivialising the information contained in it; on the contrary, we accept what is said by the Respondent although, of course, what is said may well explain what happened, but cannot excuse his conduct, as he himself concedes. The Respondent said that at the time that he was prescribing inappropriate drugs inappropriately and without authority he genuinely believed that he had the best interests of those of his patients who were elderly and on long-term opioids and those who had long-term pain issues and some of whom had transgender issues. He said "I felt sorry for all of these patients. My conduct was not acceptable and I now know I did not serve those patients well." 15Furthermore, the Respondent has suffered multiple personal family tragedies. It is not necessary to set these out in any detail, but we note that they are significant. Since November 2013 the Respondent has sought professional medical treatment which has assisted him in gaining insight into his admitted professional misconduct and has given him assistance in dealing with his family situation. 16In addition to admitting to the misconduct particularised, and conceding that he is guilty of the matters complained of in each of the Notices of Complaint, the Respondent, who is now aged 70, has said that he will submit to the orders of the Tribunal. The character reference to which we have referred was given by Mr David Jackson, a solicitor who has known the Respondent for over 50 years. During part of this time the Respondent was Mr Jackson's medical practitioner and Mr Jackson was his solicitor. Mr Jackson said, in part that; "it is my observation that the vast majority of his working life David has been a hardworking, committed doctor who has discharged his responsibilities impeccably. The events of the last few years are not a true reflection of the man I know David to be."