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." Consideration 17The disciplinary powers of this Tribunal are set out in Subdivision 6 of Part 8 of the Health Practitioner Regulation National Law (NSW) ("The National Law"). By section 149 the disciplinary powers may be exercised if the Tribunal finds that the subject matter of a complaint has been proven or admitted to it in writing. There can be no doubt that there has been a written admission and that this Tribunal may proceed to exercise such powers as are available to it. 18Having regard to the nature and extent of the complaints made against the Respondent and the seriousness of the conduct complained of, all of which are admitted, we are of the opinion that the relevant provision of the legislation is that contained within section 149C which is in the following terms; (1). Tribunal may suspend or cancel registration in certain cases [NSW] 149C Tribunal may suspend or cancel registration in certain cases [NSW] The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied- (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note: Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order- (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 19In approaching the determination of these proceedings we are informed by the objects of the National Law. Primarily, this legislation is directed to the protection of the public by ensuring; "that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered." sec 3 (2) (a). 20A large number of patients were inappropriately and unlawfully subjected to treatment by the Respondent over many years. Whilst the Respondent may have been motivated by a misguided and inappropriate view of what was in the best interests of those patients, this cannot condone a clear and significant breach of the relevant standards expected of a medical practitioner and the legislative framework within which medicine is practised. 21Furthermore, the conduct of the Respondent which he has admitted extends to the provision of drugs which are notoriously dangerous and which should be administered with proper and appropriate care. Furthermore, the legislature has seen fit to restrict the persons who are able to supply such drugs, and the circumstances in which they may be supplied. There is no suggestion that the Respondent was not, in some way, aware that what he was doing was clearly in breach of the relevant legislative framework, contrary to a practice condition imposed with his full knowledge on 10 June 2010 and in breach of well recognised treatment protocols. These are, in our opinion, most serious matters. In stating this we are also mindful of the importance that medical practitioners keep proper treatment records, and obey the injunction against providing certain treatment to close relatives. 22In determining the appropriate relief which should be granted in the circumstances of these proceedings, we are required to consider under the National Law whether the Respondent is guilty of Unsatisfactory professional conduct as defined in section 138 B. If we so find, and if that conduct is of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration, or if there is a course of conduct constituting unsatisfactory professional conduct which in the aggregate is of a sufficiently serious nature to justify suspension or cancellation, we are entitled to conclude that the misconduct constitutes professional misconduct as defined in section 139E of the National Law. 23Whether the Respondent's conduct constitutes professional misconduct is, in all the circumstances, a matter of the exercise of a value judgement having regard to the underlying factual matters and the conduct which has been properly proven in the proceedings. In our opinion it is sufficient to state the nature and extent of the conduct, which the Respondent has readily admitted, to appreciate how grave it is. It is a course of conduct which has affected a large number of patients over a considerable period of time committed in contumelious disregard of proper and appropriate treatment and of the legislative regime which applied to the Respondent in his practice of medicine. 24In all the circumstances it is our opinion that had the Respondent now been registered we would have cancelled that registration, and would not have permitted the Respondent to again become registered without the imposition of appropriate conditions. This then enlivens the provisions of section 149 C (4). Given the nature and extent of the Respondent's misconduct, but having regard to his now professed insight into his misconduct, we are of the opinion that it is appropriate to specify as a condition of reregistration that the Respondent not be permitted to do so for a period of five years from this date. We note that the Respondent will then be aged 75. We proceed on the basis that our decision and the record of these proceedings will be available to the relevant authority when considering any application to be made by the Respondent for registration. 25We note for completeness that the Complainant sought, with the consent of the Respondent, orders prohibiting the publication of the names, addresses or any other identifying information that might tend to, or lead to, the identification of the patients referred to in the documentation filed in these proceedings. We made such an order during the course of the hearing on 7 April 2014. 26The Complainant sought an order for costs which was not opposed by the Respondent, and we shall make an order accordingly. Orders 27We make the following orders; (1)having regard to our finding that if the Respondent were still registered as a medical practitioner, we would have cancelled his registration, we order that the Respondent Dr David John Bennett be disqualified from being registered as a medical practitioner for a period of five years from this date. (2)the Respondent is to pay the costs of the claimant in these proceedings in an amount assessed under the Legal Profession Act in default of agreement. (3)we direct the Medical Board of Australia to record in the national register kept by the Board the fact that this Tribunal would have cancelled the registration of Dr Bennett. ********** 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: 06 May 2014