Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Hofer [2014] NSWCATOD 74 Hearing dates: 24 - 27 February 2014 Decision date: 09 July 2014 Jurisdiction: Occupational Division Before: J Boland ADCJ, Principal Member Dr G Abouyanni, Occasional Member Dr E Kertesz, Occasional Member Ms Jennifer Houen, Occasional Member Decision: That the practitioner be reprimanded. Conditions placed on the practitioner's registration, including requirement the practitioner not possess, supply, administer or prescribe Schedule 8 drug or Schedule 4D drug, that he engage in a distance education course, a medical ethics course, and a further 2 day course at the University of Sydney. That the practitioner be ordered to continue to see a psychiatrist of his choice. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - health practitioner - complaint - where it is asserted practitioner guilty of unsatisfactory professional conduct and professional misconduct - whether practitioner's prescribing practices lacking appropriate medical judgment or not in accordance with therapeutic standards - where asserted practitioner knew or should have known patients on an opioid replacement program - where some particulars of complaints are admitted - where it is asserted practitioner failed to keep proper medical records - where some particulars of complaint admitted - practitioner guilty of unsatisfactory professional conduct. PROFESSIONAL MISCONDUCT - instances of unsatisfactory professional conduct when considered together with sufficiently serious nature to constitute professional misconduct. COSTS - where practitioner admits complaint of unsatisfactory professional conduct in a timely manner - where mistake in complaint precludes practitioner from admitting further particulars - appropriate for practitioner to pay 50 per cent of costs of the HCCC. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation (NSW) Regulation 2010 Health Practitioner Regulation National Law (NSW) Legal Profession Act 2004 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulations 2008 Therapeutic Goods Act 1989 (Cth) Cases Cited: Bannister v Walton (1993) 30 NSWLR 699 Briginshaw & Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 Donnelly v Health Care Complaints Commission [2011] NSWCC 70 Health Care Complaints Commission v Fiay NSWMT 31 August 2012 Health Care Complaints Commission v Karalasingsham [2007] NSWCA267 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Mascio NSWMT 18 October 2012 Health Care Complaints Commission v Simonsen No. 2 [2013] NSWNMT 26 King v Health Care Complaints Commission [2011] NSWCA 353 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Makita v Sprowles [2001] NSWCA 305; Pillai v Messiter (No 2) (1989) 16 NSWLR 192 Spicer v NSW Medical Council (unreported CA No 3 of 1981) Sudath v Health Care Complaints Commission [2012] 171 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Gerhard Hofer (Respondent) Representation: Counsel B O'Donnell (Complainant) A Horvath (Respondent) Health Care Complaints Commission (Complainant) Holman Webb (Respondent) File Number(s): 1420041 Publication restriction: NON PUBLICATION ORDER APPLIES reasons for decision What the Tribunal found 1On 7 July 2014 the New South Wales Civil and Administrative Tribunal ("the Tribunal") found complaints of unsatisfactory professional conduct and professional misconduct brought by the Health Care Complaints Commission ("the HCCC") against Dr Gerhard Hofer ("the practitioner") under the Health Practitioner Regulation National Law No 86a (NSW) ("the National Law") proved. 2The Tribunal ordered that the practitioner be reprimanded. The Tribunal further ordered under s 149A (1) (b) that the practitioner's registration be subject to a number of conditions, and ordered under s 149A (1)(c), that the practitioner consult a psychiatrist of his choice, and follow that psychiatrist's recommendations. The Tribunal further ordered under s 149A (1) (d) that he complete three education courses. The Tribunal's orders are set out in full at the conclusion of these reasons. 3The Tribunal ordered that the practitioner pay 50 per cent of the costs of the HCCC as agreed, or failing agreement, liberty to restore the matter before the Tribunal. 4The Tribunal also made a non-publication order pursuant to Schedule 5D cl 7 (1) of the National Law as in force at 31 December 2013 in respect of the patients whose names appear in the Complaint, except for publication to the parties in these proceedings, and those required to receive the decision pursuant to the National Law. Introduction 5The practitioner is a 57 year old general practitioner who has been practising substantially in the Wollongong area since 1988. Between 1993 and 1995 he worked in Tasmania. He currently practises at the Bayview Medical Centre ("BMC") where he has been employed as a general practitioner for the last 15 years. 6The patients who consult the practitioner at BMC are, in the main, "walk in" patients who attend without an appointment. They do not have private health insurance, and are "bulk billed". The majority of these patients come from underprivileged backgrounds, and may be described as falling within a low socio-economic cohort of the population. Many come from ethnic backgrounds. Up to 15 per cent of the practitioner's patients were, for a considerable period of time, patients with a history of drug and/or alcohol abuse. A significant number were on a methadone program. Of these latter patients many had been patients of Orana House, the drug and alcohol service attached to Port Kembla District Hospital. Orana House was closed in about 2004. At this time many of the Orana House patients migrated to the practitioner's practice at BMC and continued to consult with him for many years. 7The genesis of the present Complaint, brought by the HCCC, was a request by the practitioner, made in May 2010, to the (then) Medical Board, to restore his prescribing and other rights in respect of Schedule 8 drugs. (Schedule 8 is one of the schedules set out in the Poisons List made under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) ("Poisons and Therapeutic Goods Act"). By a cross referencing scheme the drugs in that schedule are those proscribed in Schedule 8 of the Poisons Standard made under the Therapeutic Goods Act 1989 (Clth)). 8The practitioner's request led to an investigation by the Pharmaceutical Service Branch of NSW Department of Health ("the PSB"). That investigation found prescribing irregularities in respect of benzodiazepines, Pethidine, Tramal, and Panadeine Forte (Schedule 4 D drugs) ("S 4D"). Fifty three of the patients for whom prescriptions were written by the practitioner were, or had been, on an opioid treatment program. Later investigations also focussed on the practitioner's medical records. 9The practitioner's right to prescribe Schedule 8 ("S 8") drugs was voluntarily surrendered by him in 2003 following a period in which he acknowledges he inappropriately prescribed and self-administered drugs of addiction. The practitioner, for the following three years, was on the Impaired Registrants' Program. There is no suggestion that the practitioner has, since 2003, self-administered any drugs of addiction. The Complaint 10On the first day of the hearing the HCCC made an application to amend the Complaint. That application was granted, but subject to an order for indemnity costs in favour of the practitioner for costs thrown away by reason of loss of that day's hearing. The amendment was necessary because the HCCC had, in error, referred to regulations made under the National Law instead of under the Medical Practice Regulations in force from time to time during the relevant period. 11Two Complaints agitated by the HCCC are that: (1)That the practitioner is guilty of unsatisfactory professional conduct under s 138B of the National Law; and (2)The practitioner is guilty of professional misconduct under s 139 E of the National Law. 12The Amended Complaint in respect of unsatisfactory professional conduct contains 94 particulars (with numerous sub-paragraphs) but essentially falls into two discrete assertions. First, that the practitioner did not exercise proper medical judgment when issuing prescriptions to 20 patients (referred to in the Complaint as Patients A-Z except patients E, L, M, P, R, and V). Secondly, that the practitioner contravened various Medical Regulations (1998, 2003, and 2008), and after 2010, Schedule 2 cl 7 of the National Law ("the regulation") in that he did not keep proper clinical records in respect of all patients named in the Amended Complaint (Patients A to Z). 13While the practitioner does admit in some cases that he did not exercise appropriate medical judgment when prescribing for some patients, he does not admit in a document filed by him in February 2014 entitled "Response to Complaint" ("the response") in respect of many of the patients that he breached the regulation. That stance is readily explicable due to the drafting of the Complaint which failed to refer to regulations in force prior to the introduction of the National Law relating to the keeping proper medical records. The Practitioner did, however, concede a number of other particulars of this complaint in respect of all patients other than Patient P. 14The practitioner admits his conduct in respect of the prescribing complaint, and the record keeping complaint, constitutes unsatisfactory professional conduct. He does not, however, concede it amounts to professional misconduct. 15Neither party sought that these proceedings should be conducted on a "two stage basis" (see King v Health Care Complaints Commission [2011] NSWCA 353 and Sudath v Health Care Complaints Commission [2012] NSWSC 171). Accordingly, counsel made submissions at the conclusion of the hearing both as to the complaints, and appropriate protective orders to be made by the Tribunal. 16The HCCC sought orders that the practitioner's registration be cancelled and a period of not less than two years elapse before he can re-apply to be re-registered. Alternatively, the HCCC sought the Tribunal make orders imposing conditions on the practitioner's registration. The HCCC sought that the conditions be "critical compliance conditions" under s 149A (5) of the National Law. The practitioner, with the exception related to attendance on a Council appointed psychiatrist, and the making of the conditions as critical compliance conditions, did not oppose the type of conditions proposed by the HCCC. 17As a consequence of the enactment of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), Schedule 1, Division 2, cl. 3 the Medical Tribunal ("the MT") was abolished effective on 31 December 2013. The MT's functions were taken over by the Tribunal. Pursuant to the transitional provisions in the NCAT Act (see Schedule 1, Div 3, Sub-Div 2, cl. 7 (2) and (3)) the matter is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the NCAT Act and the relevant amending Acts not been enacted, continue to apply. In summary, the National Law as in force up to 31 December 2013 is applicable. Background 18The following matters, unless noted by us to be an assertion, are accepted as facts proved to the requisite civil standard. 19The practitioner was born in April 1957. He is divorced and has one daughter who is now over the age of 18. 20 He completed a Bachelor of Science degree in 1978 at the University of Sydney. He subsequently, between 1979 and 1982, enrolled at the university as a Ph.D student, but did not complete this degree. He travelled overseas for one year in 1982 and on return to Australia completed the degrees of Bachelor of Medicine, Bachelor of Surgery at the University of Sydney graduating in 1988. 21Between 1988 and 1993 the practitioner was employed by the Illawarra Health Service, initially as an intern, and subsequently as a career medical officer. Whilst in this latter role he undertook studies in the Family Medicine Program. 22Between 1993 and 1993 he worked in various practices including practices in Tasmania. 23In 1994 he commenced part-time employment at BMC. 24From 1995 to date the practitioner has practised at the BMC. He has generally worked each weekday and a half day on Saturday. In addition to his practice at BMC, between 2002 and 2004, he worked on a part-time basis in the drug and alcohol unit of the Port Kembla Hospital. 25In 2002 the practitioner commenced self-administering morphine. He self-referred to the Doctors' Health Advisory Service who referred him to a psychiatrist, Dr Kaplan. 26On 25 March 2003 an inquiry was held under s 182 of the Medical Practice Act 1992 (NSW) (an Impaired Registrants' Inquiry) after which the practitioner consented to conditions being placed on his registration. Among the conditions was a condition that the practitioner's S 8 drug prescribing authority was to be withdrawn by the PBS. 27On 26 March 2006 the practitioner was discharged from the Impaired Registrants' program. At the discharge hearing, the practitioner agreed at that time not to seek restoration of his S 8 prescribing rights. 28On 4 May 2010 the practitioner wrote to the Medical Board and said "I would like to apply for re-instatement of S 8 prescribing authority". 29On 20 May 2010 the Medical Board's Health Committee recommended to the PSB that the practitioner's prescribing authority in respect of S 8 drugs be reinstated. The Medical Board's Committee did not, however, recommend that the practitioner should be able to possess, supply or administer S 8 drugs. 30The practitioner's letter to the Medical Board precipitated an audit of his prescribing of medication at local pharmacies. As a result of the audit by the PSB the practitioner's potentially inappropriate prescribing practices for fifteen patients was identified. Further, thirty-five patients for whom the practitioner was prescribing were identified as being on an Opioid Replacement program at the time of dispensing prescriptions written by the practitioner. Another thirteen patients, for whom the practitioner wrote prescriptions, were identified as having previously been on an Opioid Replacement Program. Prescriptions written by the practitioner for these patients include 4D drugs and Panadeine Forte. 31The practitioner was interviewed by the PSB on 29 October 2010, and at the completion of the interview, signed a document by which he agreed that an order be made under s 18AA of the Poisons and Therapeutic Goods Act "prohibiting him from possessing, supplying or prescribing a prescribed restricted substance". 32An audit of the practitioner's medical records was conducted by Dr Jude Ng ("Dr Ng") on 21 June 2011. Dr Ng found the practitioner's records were inadequate. Following Dr Ng's report, the practitioner migrated not only the medical records for his patients, but also those of three other practitioners at the BMC to an electronic record keeping system, "Medical Director". 33On 23 August 2012 Dr Ng conducted a further audit of the practitioner's medical records, and recommended that no further audit be required. 34On 9 February 2011 the Medical Council of New South Wales ("the Council") conducted proceedings under s 150 of the National Law. On 25 March 2011 the Council imposed conditions on the practitioner's registration under s 150. The practitioner has complied with the conditions imposed. 35At the date of the hearing the practitioner continued to work at the BMC. The practitioner has a special interest in minor surgical work, particularly associated with skin cancers. Issues in dispute 36The principal issue in dispute insofar as the Amended Complaint is directed to the practitioner's prescribing practices, is whether he knew, or ought to have known, particular patients were on an Opioid Replacement Program when he prescribed for them, or whether they had been on such a program. 37Integral to that issue is whether, in the circumstances of this particular group of patients, the practitioner too readily prescribed inappropriate drugs including benzodiazepines, over a significant period. In other words did he, as generally asserted by one HCCC's expert, simply write a prescription without exercising any clinical judgment. 38It is the practitioner's case that he only treated a cohort of patients who would comply with his plan that they gradually reduce their prescribed medication. He does not deny, in some limited cases, the reduction took "too long", or that he should have ceased prescribing earlier than he did. 39The issue to be determined in respect of the complaint directed to the practitioner's medical record keeping is the adequacy or otherwise of the practitioner's records. It is the practitioner's position that, in many instances, he has recorded a patient's presenting complaint adequately, and has kept records of investigations ordered by him. He points out that the HCCC did not have all of his medical records to provide to the experts retained by it, nor did they produce his complete records in the material on which they relied before the Tribunal. 40The Tribunal notes that agreement was reached with the parties' respective counsel during the course of the hearing to rely on the practitioner's medical records (as opposed to those produced by the HCCC) as the former records are the complete relevant records. 41It is not in dispute that, prior to the investigation by the PSB, the practitioner had taken steps to cease seeing the drug dependent patients, and after Dr Ng's report took steps to migrate the whole of the BMC's medical records, not just his own records, onto a computerised medical records system (the Medical Director). 42As the practitioner admitted his conduct in respect of the identified patients and his failing to keep proper medical records amounted to unsatisfactory professional conduct, the pivotal issue to be determined by the Tribunal was whether prescribing and /or failing to keep proper records amounted to professional misconduct Admissions by the practitioner 43The Amended Complaint deals with the practitioner's conduct in respect of 26 patients. It asserts prescribing complaints in respect of 20 of those patients. It also asserts complaints of improper record keeping in respect of all 26 patients. The practitioner did not dispute that he was guilty of unsatisfactory professional conduct in respect of his prescribing practices in respect of Patients B, C, D, F, N, O, Q, S, T, U, and Y. He made partial admissions in respect of G, H, I, K, and Z but denied, or did not admit, the allegations in respect of Patients A, J, W and X. 44The practitioner did not have the opportunity, because of the late amendment of the Complaint, to make detailed admissions in respect of the particulars of the complaint dealing with asserted breach of the relevant prescribing regulations at the various time periods. In his response the practitioner made a number of admissions in respect of the particulars of the prescribing complaints in the original Complaint relied on by the HCCC. 45The particulars of the prescribing complaint are identical in respect of each patient in respect of whom the complaint is made (Patients A, B, C, D, F, G, H, I, J, K, N, O, Q, S, T, U, W, X, Y and Z). Those particulars are relied on to assert that the practitioner's conduct demonstrated that the knowledge, skill or judgment possessed or care exercised by him was significantly below the standard reasonably expected of a practitioner of any equivalent level of training or expertise and/or constituted improper or unethical conduct in his medical practice. The particulars as set out are as follows: (a)Without exercising appropriate medical judgment as to whether to issue such prescriptions; (b)For a purpose not in accordance with recognised therapeutic standards as to what is medically appropriate; (c)For a duration in excess of recognised therapeutic standards as to what is medically appropriate; (d)When the practitioner knew or ought to have known that the drugs so prescribed were being, or likely to be, abused; (e)When such prescribing was contraindicated as it was known or should have been known to the practitioner that [the Patient] was on an opiate replacement program. 46Each record keeping complaint, with some minor exceptions, contained eight particulars of the complaint. The language employed in the particulars follows the language in the relevant regulation and prior regulations in force at various periods. The eight particulars, which each allege a failure by the practitioner to keep proper records, are as follows: (i)The patient's medical history; (ii)Sufficient history of previous and ongoing drug use by the patient other than that prescribed by the practitioner; (iii)Details of an examination of the patient's mental state; (iv)Any investigations undertaken by the practitioner; (v)The progress of the patient at each visit; (vi)The diagnoses made by the practitioner; (vii)Plans, nature and results of treatment for the patient; (viii)Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. 47The practitioner conceded approximately half the particulars of each records complaint, except for Patient J (no concessions), Patient U (three of the eight particulars) Patient V (two of the eight particulars), Patient Y (two of eight) and Patient E (three of eight). 48In his cross-examination of the practitioner Mr O'Donnell, counsel for the HCCC, indicated, given the concessions made by the practitioner, that he did not intend to put each particular of each prescribing and record keeping complaint over the variously pleaded time periods to the practitioner. Ms Horvath, counsel for the practitioner, concurred with that approach, as did the Tribunal. We are satisfied that the real matters in issue were put to the practitioner, and that he was afforded an adequate opportunity to respond to the complaints. The Health Practitioner Regulation National Law ("the National Law") Objects and guiding principles 49Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. 50Section 3A, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 51It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186). The onus or burden of proof 52The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Unsatisfactory professional conduct and professional misconduct 53Complaint One asserts the practitioner is guilty of unsatisfactory professional conduct as set out in s 139B(1) of the National Law. 54The relevant provisions of that section for the purposes of this matter are follows: (1)"Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- ... (a)Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b)A 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) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 55Complaint 2 asserts the practitioner is guilty of professional misconduct under s 139E of the National Law. That section provides as follows: 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. The practitioner's written statement 56The practitioner provided a detailed written statement dated 12 December 2013. It is unnecessary we record the details provided by the practitioner of his qualifications and professional practice history as these matters are essentially captured earlier in these reasons under the heading "Background". 57The practitioner explained, at paragraph 17 of his statement, that patients were referred to him by the Port Kembla District Hospital and the methadone clinics "because I was sympathetic to them and did not judge them [the patients] harshly over their problems. This increased the proportion of drug and alcohol related patients in my practice". He then explained his rationale for prescribing benzodiazepines "to people I knew, or should have suspected were on the methadone program". His treatment, he said, was to implement strategies which included the aim of reducing the patients' dependence on benzodiazepines over time, and only prescribing therapeutically recognised dosages of the drugs. 58The practitioner candidly explained, at paragraph 19 of his statement, that by 2007 he realised that up to 15 per cent of his patients were ones for whom he regularly prescribed benzodiazepines. He said: I also realised that, in most cases, there was no corroborative evidence from other therapists that the medications were necessary, and that the success stories of patients getting off their methadone and of benzodiazepines were few and far between. It was also taking patients far too long to reduce their dosages of benzodiazepines. I made a decision to cut back on the prescriptions for Schedule 4 Appendix D drugs that I wrote and to try and find other solutions for the patients to whom I regularly prescribed benzodiazepines. 59The practitioner went on to explain that his efforts to reduce the patients' prescriptions for benzodiazepines took longer than he expected. He acknowledged that he received feedback from the national prescribing service in 2008 and 2009 and conceded at that time he was still prescribing more benzodiazepines than the average general practitioner. 60After referring to the conditions placed on his registration under s 150 of the National law in February 2011, the practitioner stated he had fully complied with the conditions, (a fact not disputed at this hearing) and that his mentoring relationship with Dr Ajam had been successful. Dr Ajam is the owner and operator of the BMC. 61At paragraphs 28 to 30 of his statement, the practitioner canvassed issues about his medical record keeping. He recorded that after an adverse audit report by Dr Ng, and helpful discussions with that doctor, he had implemented an electronic management reporting system, "Medical Director" at the BMC not only for himself, but for the whole practice. He explained this had involved an enormous effort, and that he personally entered data for not only his own records, but those of three other practitioners at BMC. The expert evidence 62The HCCC provided evidence from two medical experts to assist the Tribunal. Dr Robert Spark ("Dr Spark") provided three reports dated respectively 12 November 2011, 25 November 2011 and 6 November 2011. Dr Harry Nespolon ("Dr Nespolon") provided reports dated, on the front page April 2012, and on the final page June 2012, ("the first report") and a report noted as "Completed in September 3013 and Signed on 17 November 2013 ("the supplementary report"). Neither doctor was required for cross-examination. 63The HCCC also relied on a PSB investigation report conduct by Mr Ken Thompson ("Mr Thompson"). Mr Thompson was not required for cross-examination. 64Dr Spark is a general practitioner retained by the HCCC to prepare a report as to whether or not the practitioner's prescribing of S 4D drugs was in accordance with the recognised therapeutic standard, and the general quality of his medical records. Dr Spark holds the degrees of Bachelor of Medicine and Bachelor of Science. Additionally he holds the qualification of MHP. No curriculum vitae for Dr Spark was provided to the Tribunal. 65 At the time of preparing his report dated 12 November 2011 the number of patients whose records he was asked to review totalled 54. The HCCC did not eventually assert inappropriate prescribing for all the patients reviewed. Further, in making his assessment, Dr Spark noted that he did not have relevant details of the patients' ages, and the clinical indications for the prescription of the drug in question. Nor did he have investigation reports obtained in respect of a number of the patients. Accordingly, the opinions proffered by Dr Spark must be carefully balanced to take into account the further evidence before the Tribunal, but not available to him. 66In his report dated 12 November 2011 Dr Spark, having set out the material provided to him on which he based his report, under the heading "S 4D prescribing for opioid dependent patients" noted: Further background information is that there is a high prevalence of benzodiazepine abuse in methadone maintenance patients. An accepted approach to attempt to manage this problem is to prescribe benzodiazepines to methadone patients in a controlled setting with an identified goal of reducing benzodiazepine use. Diazepam is the drug of choice. Dosage should be regular to avoid binges. It should not exceed 30mg daily. Urine drug screening should occur and it should generally be used short term (less than 6 months). Long term benzodiazepine prescribing is occasionally reasonable as a substitute for alcohol and for people who do not stabilise on methadone alone. 67Dr Spark then said "In the context of the above situation, I am not particularly critical of Dr Hofer's S 4D prescribing for this group of patients". He noted 19 of the patients had short-term low dose prescriptions, and where the course was long enough, there was evidence of reducing dosage over time. Dr Spark went on to refer to the three patients for whom the practitioner prescribed for over twelve months without apparent reduction in dosage, but noted that the prescribed dosages were "comparatively low". He opined such prescribing was not in accordance with the therapeutic standard, but the practitioner's prescribing did not, in his opinion, fall significantly below the standard. 68Dr Spark then referred to a list of 32 patients for whom the practitioner had prescribed S 4D drugs for more than 10 months. The drugs prescribed were Nitrazepam, Temazepam, Oxazepam, Alprazolam and Diazepam. He explained that the dosages prescribed by the practitioner for each of the 32 patients were within the recommended guidelines. Dr Spark concluded that he found no instances where the prescribing fell below the therapeutic standard, and that he was "not strongly critical" of any of the cases. 69Dr Spark was, however, critical of the practitioner's medical records noting entries were very brief, and only contained a record of the drug prescription. He found in respect of patients C, D, F, N, O, Q, S and T, and another patient not named in the schedule to the complaint, that the practitioner's records were significantly below the expected standard and invited strong criticism. 70In an addendum to his first report dated 25 November 2011 Dr Spark described two scenarios. In the first, the practitioner was prescribing benzodiazepines for methadone patients contrary to the plan of the methadone prescriber. The second scenario was a co-ordinated program where the practitioner and the methadone provider were monitoring patients, regularly discussing results, and concluded with a documented outcome of patients ceasing their benzodiazepine and/or methadone use and "keeping clean". In respect of the first scenario [if found to be established] Dr Spark said the practitioner's conduct would be a significant departure and attract his strong criticism. The second scenario [again if established on the evidence] would attract his praise. 71Dr Spark, in his second report dated 6 December 2011, responded to further questions posed to him by the HCCC. Having reviewed the records of 11 patients, Dr Spark was critical of the practitioner's prescribing practices in respect of each patient identified including patients C, D, F, I, N, O, Q, S, T and Y. 72On 22 December 2011 the HCCC asked Dr Spark to provide a further report. This report essentially replicates the opinions set out by Dr Spark in his report of 6 December 2011. 73On 7 February 2012 the HCCC retained Dr Nespolon to also provide expert evidence. Dr Nespolon's curriculum vitae reveals he holds the degrees of Bachelor of Medicine and Surgery, Bachelor of Economics and Bachelor of Law (Honours), and Master of Business Administration. From 2003 to date he has been involved in the establishment and development of general medical practices at Neutral Bay, and the Sydney CBD. He is a former Director of Health Services and General Practice, Australian Medical Association. Dr Nespolon produced a comprehensive report dated April 2012. 74The Tribunal is satisfied that both Dr Nespolon and Dr Spark hold the requisite qualifications to provide an expert opinion on issues in dispute. However, as we have already noted in respect of Dr Spark's evidence, the Tribunal cannot, particularly insofar as the record keeping complaint is concerned, ignore the fact the opinions expressed, through no fault of the experts, are based on incomplete material (see Makita v Sprowles [2001] NSWCA 305 at [85].) 75Dr Nespolon's report contains specific details of prescribing and record keeping for each of the patients named in the complaint. We will refer to his evidence about particular patients when referring to the patients in respect of whom the practitioner does not admit or denies the particulars of the prescribing and record keeping complaints. We will also refer to Dr Nespolon's conclusions in our assessment of the conceded complaints, and whether the incidents of unsatisfactory conduct either individually, or aggregated, amount to professional misconduct. 76It is however useful at this point that we refer to some general observations made by Dr Nespolon. 77Dr Nespolon notes that cl 54 of the Poisons and Therapeutic Goods Regulations 2008 provides that "an authorised practitioner must not prescribe any restricted substance in a quantity, or for a purpose, that does not accord with the recognized therapeutic standard of what is appropriate in the circumstances". 78At paragraph 5.1 of his report Dr Nespolon noted, under the heading "Benzodiazepines", "Up to 35% of people in an opioid treatment program take benzodiazepines regularly or intermittently, these patients tend to do very poorly. There are no clear therapeutic indications for long-term benzodiazepines prescribing, and an important object of methadone treatment should be to minimise use of benzodiazepines by patients." [original emphasis]. He further noted that "Benzodiazepines are not safe drugs when taken in conjunction with opioids, particularly methadone" [original emphasis]. 79Dr Nespolon pointed out that patients seeking out benzodiazepines are often highly skilled at obtaining prescriptions, and referred to the difficulties in managing these patients. He noted the need to obtain a careful history of benzodiazepine use, to find corroborative evidence of major withdrawal in the past, the use of urine samples, registration with the Health Insurance Commission's doctor shopping information service periodically, and to define the goal of treatment. 80Dr Nespolon also helpfully set out the relevant product information for diazepam and other drugs prescribed by the practitioner. We will refer to that information for diazepam when dealing with the particulars in relation to Patient X. 81By way of background to his conclusions on the practitioner's medical records, Dr Nespolon referred to the fact the Royal Australian College of General Practitioners publishes Standards in General Practice and that these standards are widely used in the accreditation of medical practices. He quoted from the standard as follows: The quality of patient health information needs to be such that another GP or clinical staff member could read and understand the terminology and abbreviations used, and from that information provided, be equipped to manage the care of the patient. Documentation of all the items in indicator A will not be required for every individual consultation (e.g. consultations for repeat prescriptions). The prescribing complaints 82Mr O'Donnell submitted we could be comfortably satisfied to the Briginshaw standard that the complaint of unsatisfactory professional misconduct was established on the practitioner's own admissions. He further submitted that, because of the number of matters involving unsatisfactory professional conduct admitted by the practitioner, we could also be comfortably satisfied that the complaint of professional misconduct is established. 83While we accept the practical outcome of dealing with the matter in the manner suggested by Mr O'Donnell, particularly in respect of the prescribing complaints, we are nevertheless satisfied that such a course may be procedurally unfair to the practitioner who would be left uncertain as to our findings in respect of the non-admitted particulars. (see Lucire v Health Care Complaints Commission [2011] NSWCA 99 per Basten JA at [43]). We propose to deal with those prescribing complaints not admitted by the practitioner by examining the evidence and making findings about all patients, but with emphasis on Patients A, G, I, J, K, W, X, and Z being the patients in respect of whom the practitioner denied the particulars of the complaint in whole or part, or did not admit the particulars in whole or part. Patient A 84The practitioner did not admit the five particulars asserted in respect of inappropriate prescribing for this patient. The practitioner explained that Patient A had been an existing patient of the BMC when first seen by him. He acknowledged he had provided prescriptions for Avanza on one occasion, and Valium on various occasions. He further explained that he did not wish to treat this patient, but had prescribed Valium on a number of occasions when the patient presented with various family stresses. 85The practitioner conceded that he had prescribed Valium after the patient was recorded as having used " 'crystal meth' (ice)". He said he was unaware the patient was an authorised methadone user, that he was not suspicious the patient was "doctor shopping", or was an illicit drug user. His evidence was that he had no reason to suspect the patient's drug use as he was not asking for "benzos", and he was satisfied with his explanation he was looking after his ill parents. 86In a table attached to his report Dr Spark indicated that the practitioner's prescribing practice in respect of Patient A accorded with relevant therapeutic standards. Dr Nespolon does not criticise the practitioner's prescribing of oxaxepam from March 2004 for this patient. He goes on to note that, on 26 August 2006, the patient requested diazepam as he was just getting off "crystals". But the practitioner did not accede to the patient's request for diazepam at that time and next prescribed for him on 23 July 2009. Dr Nespolon notes in respect of this prescription "there is no decipherable reason stated". He goes on to opine: Dr Hofer should have followed his own notes and at worse should have been suspicious that this patient may have been a doctor shopper or may have been an illicit drug user. There is no evidence that Dr Hofer attempted to establish a high risk patient was being prescribed medication elsewhere. 87Dr Nespolon concludes that the practitioner did not meet the standard expected of a practitioner of equivalent standard, and his prescribing was significantly below that standard. 88Ms Horvath submitted we should accept and prefer the evidence of Dr Spark to that of Dr Nespolon in respect of this patient. We do take into account that Dr Nespolon, at the time of preparing his report had the knowledge that Patient A had been on a methadone program since 2007, a fact not known to the practitioner. We agree with Dr Nespolon there is no decipherable reason in the clinical notes to support the prescribing of Valium on 26 August 2006. We also agree that, given the clinical notes in April 2004 refer to "last script" in respect of diazepam prescriptions, and the fact the patient told the practitioner of his drug use in 2006, the practitioner should have had a heightened suspicion about the patient's drug history and made some enquiry, at least of the patient, before prescribing diazepam in August 2008. 89We accept the particulars pleaded in Complaint One in respect of Patient A, with the exception of the prescription of oxazepam on 22 March 2004, are established. We agree with Dr Nespolon that the practitioner's prescribing conduct in respect of this patient is a departure from, and significantly below, the standard of a practitioner of an equivalent level of training or experience. Patient B 90The practitioner conceded the particulars relating to the prescribing complaint in respect of this patient save and except he denied he knew she had been on an opioid replacement program until 2002. 91The practitioner agreed in cross-examination that he had extensively prescribed Valium for this patient. He sought to discount the fact the patient's hepatitis C diagnosis was indicative of drug usage, and said "she could have had tattoos and got it that way". 92We were unable to accept the practitioner's explanation of why he ignored or sought to minimise Patient's B's diagnosis of Hepatitis C against a background of known drug use from 2002. We are independently satisfied that the practitioner's prescribing practice in respect of this patient was significantly below the appropriate standard. Patient C 93All particulars relating to the prescribing complaint in respect of this patient set out in the Complaint are conceded by the practitioner. 94Dr Nespolon deals with the facts about this patient at pages 31 and 32 of his first report. He notes, amongst other matters, that at a time the patient attended with a complaint of a chipped tooth he was prescribed oxazepam. 95We have no hesitation in accepting in its entirety Dr Nespolon's summary of the practitioner's prescribing for this patient, or his opinion that it failed to meet the requisite standard. We also accept Dr Spark's opinion in respect of this patient, which is identical to that of Dr Nespolon. Patient D 96As noted earlier, the practitioner conceded the particulars in respect of the prescribing complaint in respect of this patient. 97Dr Spark is strongly critical of the practitioner's prescribing practices in respect of this patient. 98Dr Nespolon's first report captures the essence of the particulars alleged against the practitioner. He notes that Patient D was seen in 1995 and after that date throughout 1996, 1997 and 1998 when the practitioner prescribed oxazepam 30mg "at the rate of approximately one prescription every two weeks". In 1999 oxazepam was prescribed twice per month. He goes on to note that prescriptions for this patient continued regularly in 2000 and 2001, and although in 2001 the patient's prescription was cut down to 15mg it returned to 30mg soon after. He further notes that throughout the period 2002 to April 2010 the patient continued to receive prescriptions at least monthly of oxazepam. He concludes that the practitioner's conduct in respect of this patient was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience to that of the practitioner and attracted strong criticism. We agree. Patient E 99The complaint in respect of this patient is limited to one relating to the medical records, not prescribing. Patient F 100The particulars in respect of this prescribing complaint were also admitted in their entirety by the practitioner. As with Patient D, we accept Dr Nespolon's conclusions (and those of Dr Spark) about this patient, who was a long term patient of the practitioner (2003 to 2010) and a known former drug user, are cogent and relevant. We accept the particulars in respect of this patient are established to the requisite civil standard. Patient G 101The practitioner conceded he had prescribed diazepam for this patient, but he did not admit the particulars in respect of the prescribing complaint. It is important to note that the particulars relied on in this complaint refer to the practitioner's prescribing practices between 13 January 2009 and 9 February 2010 but records produced by the HCCC extend outside that period including 2008 prescriptions. We have disregarded the earlier prescriptions. Dr Nespolon in his supplementary report limits his comments to the dates pleaded in the Complaint. 102The practitioner in his oral evidence explained that Patient G presented with muscle spasm and back pain. He said in response to a question as to why he had prescribed Panadeine Forte for this patient that: Well, I would have asked her does she have an scans or hospital discharge summaries and if you do, bring them in the next time (transcript 26 February 2014 p47). 103He also said on the patient's third visit she had told him she was going to Prince of Wales Hospital the following week to see an orthopaedic specialist and this was "presumably the orthopaedic surgeon who operated on her bone infection her osteomyelitis". He also said he had told the patient to sign a release of information form at the front desk "so we can try and obtain a discharge". He further explained in June he asked the patient to bring in some documentation. He denied he had known the patient was on methadone, and was unable to recall whether he had asked about her drug use. 104The practitioner strongly denied in this instance that his prescribing practice was not in accord with therapeutic standards, or was for a duration in excess of what was appropriate, or was contra indicated. He said that he only gave the patient boxes of 20 not 100 the latter being a quantity frequently sought by drug addicted patients. 105Dr Nespolon in his supplementary report notes "The prescriptions are spaced and from this aspect, the prescribing would be appropriate, but appropriate indications for prescribing are not present". He goes on to opine: There is no evidence that Dr Hofer exercised appropriate medical judgment when issuing [Patient G] diazepam prescriptions. 106The evidence in respect of this prescribing complaint, if reliance is placed only on the practitioner's clinical records supports Dr Nespolon's opinion. However, the practitioner's oral evidence does provide some support for his prescribing for this patient. He ceased prescribing for her when she failed to produce her specialist records or scans. While, as we will shortly explain, we are satisfied the records claim is established, we are not satisfied this prescribing complaint has been established to the requisite civil standard. Our finding is supported by Dr Nespolon's first comment set out above. Patient H 107The practitioner concedes all the particulars in this prescribing complaint except particular (e) namely that he should have known the patient was on an opiate replacement program. 108The evidence discloses that Patient H was treated by the practitioner on a long term basis (1998 to April 2010). There is a long history of regular prescriptions for this patient for benzodiazepines. Another doctor's entry in the patient's clinical notes records, in June 1999, the patient was on methadone. We agree with Dr Nespolon's view that this fact should have alerted the practitioner to the patient's methadone treatment. 109We accept the opinion of Dr Nespolon's about this patient. We are independently satisfied that the practitioner failed to exercise the appropriate standard in prescribing for this patient. Patient I 110The practitioner conceded he prescribed for Patient I for a period in excess of recognised therapeutic standards as to what is medically appropriate. He also conceded he prescribed when such prescribing was contraindicated as it was known or should have been known the patient was on an opioid replacement program. He did not admit particulars (a) and (b) of the prescribing complaint. 111The clinical notes disclose Patient I was an intravenous drug user who is Hepatitis C positive. He was consuming large quantities of alcohol on a daily basis when first seen by the practitioner. The practitioner initially prescribed Valium and said it was indicated for a home ambulatory detox. He sought to justify his prescribing on the basis the patient suffered dental pain and was affected on the anniversary of his son's death each year. The notes reveal the patient used methadone in 1993 and 1997. The patient was seen by the practitioner from 2001 to 2010. He received prescriptions for Diazepam, amongst other matters, for dental pain. Dr Nespolon's records that dental pain is not an indication for the prescription of this drug. 112We note also that Dr Spark is strongly critical of the practitioner's prescribing conduct. 113We were unable to accept the practitioner's evidence in support of his assertion he exercised proper medical judgment when prescribing or that the purpose of the prescriptions was in accordance with recognised therapeutic standards. The clinical notes disclose a patient with severe drug and alcohol problems, and clearly record his methadone use. This could not have left the practitioner in any doubt this was a patient for whom great care was required in prescribing. We accept the prescribing of Diazepam for dental pain was not appropriate. We find the practitioner's concession to this effect is appropriately made. We are satisfied all particulars set out in the Complaint in respect of Patient I are established. Patient J 114The practitioner admits that he prescribed diazepam for this patient between September 2005 and April 2010. He does not otherwise admit particulars (a) to (d). 115The practitioner denied that he knew the patient had been a registered methadone prescriber from 1994. He explained that he relied on the patient's reported history that he had a spinal fusion several years earlier. He agreed he had not obtained any additional history or made any further enquiries of the patient about his history (transcript 26 February 2014 p 61). He said that the patient "consistently request it [Valium/benzodiazepines] for his back pain". He conceded he had not taken any steps to explore what might have been causing the patient's back pain. He also conceded in 2005, at his first consultation with the patient, he had not physically examined the patient. He agreed he did not receive any documentation from the patient's specialist, or ask him whether he was participating in a methadone program. 116The practitioner sought to explain his prescribing of benzodiazepines for this patient over a four and a half year period on the basis that "I think I noticed he wasn't using much" and "I thought the medication was appropriate for the condition". He also said "I didn't regard him as a drug seeker" (transcript 26 February 2014 p 63). 117The practitioner later explained he was waiting in "2007 and 8 and 9 to get reports back from the specialist" (transcript 26 February 2014). 118The practitioner was asked about an X-ray of the patient's back in May 2006 by Dr Abouyanni. He was questioned as to whether he had discussed the X-ray results with the patient, and why he had prescribed nitrazepam. The practitioner explained the X-ray disclosed no change in the patient's back since 1998. The following exchange occurred between the practitioner and Dr Abouyanni" Q. Did you have second thoughts about why this patient is stating that he's suffering back pain? Or any other differential diagnosis or any? A. That his back paid pre-dates the accident. His back pain was before he had his surgery. 119The practitioner's explanations about his prescribing practices in respect of this patient, as with a number of other patients, were not convincing. Rather they demonstrated an indifferent or passive approach to the patient's request for addictive drugs without any independent exercise of professional judgment or pro-active steps taken by the practitioner. The practitioner's actions in prescribing benzodiazepines for this patient provides a cogent example of his passive response to a cohort of patients who Dr Nespolon accurately describes as highly skilled [at obtaining prescription drugs]. To his credit the practitioner has, since 2007, taken positive steps to change the nature of his practice. His actions demonstrated insight into his past failures in respect of prescribing for patients such as Patient J without any independent verification of claims of back or dental pain. 120Dr Nespolon notes that the clinical records disclose this patient was first seen by the practitioner in September 2005 when he was prescribed diazepam. The patient was noted to have lumbar back pain but there is no recorded history of muscle spasm. Ms Horvath pointed out this observation by Dr Nespolon is inaccurate. We accept there is an entry on 18 March 2005 in which the practitioner records the patient suffered "spasm", but find the handwritten entry is hard to decipher. The prescription for diazepam was repeated two months later. From March 2006 to April 2010 the patient received regular diazepam prescriptions. Dr Nespolon also notes that Patient J had a registered methadone prescriber from 1994. Dr Nespolon opines that the practitioner's conduct did not meet the standard reasonably expected of a practitioner of an equivalent level of training or experience, that his departure from the standard was significantly below that standard, and invited his strong criticism. 121For the reasons we have enunciated above, we agree with Dr Nespolon's assessment of the practitioner's prescribing conduct in respect of Patient J. Patient K 122The practitioner admits he prescribed diazepam for Patient K between July 2003 and August 2009. He does not otherwise admit any of the particulars of the prescribing complaint. 123This patient's clinical notes disclose that she has a positive diagnosis of Hepatitis C. An entry of 29 March 1998 reveals the patient had stopped methadone. A further entry of 15 July 2003 notes the patient is an "IVDU". Dr Nespolon in his first report at page 21 states "This note was made by another doctor and does not state whether the patient is current [sic] intravenous drug user". 124In cross-examination the practitioner agreed he must have referred Patient K to a methadone treatment program for her heroin addiction. He also agreed that the notes revealed the patient proposed to get a Naltrexone implant for withdrawal from opiates. 125The practitioner was then questioned about why he had prescribed diazepam between 2003 and 2009 and replied "To prevent seizures". He gave evidence that the seizures were "Epileptic form of seizures". He agreed he had noted the patient was HIV positive and said this "could be" consistent with intravenous drug use. The following exchange occurred between the practitioner and Mr O'Donnell Q. And I suggest to you that the prescribing to her, given that, of Diazepam was contra indicated? A. Not if she was epileptic, or prone to withdrawal seizures. Q. Was there any other type of medication you could have prescribed to her, in your knowledge, that may have addressed those issues of epilepsy and/or seizures? A. Well, there are other things that can be used, but I tried to avoid prescribing Rivotril. 126At the conclusion of Mr O'Donnell's cross examination, questions were posed to the practitioner by Dr Abouyanni as follows: ABOUYANNI Q. You mentioned that on some occasions you prescribed diazepam for [patient's name] for epilepsy, is that correct? A. Yes. Q. Can you elaborate on that? A. I didn't want to give her Rivotril because it's 200 tablets in a bottle. Q. Was [patient's name] having a convulsion witnessed by yourself at the time that you prescribed diazepam? A. No. Q. Do you understand the relationship between diazepam and epileptic fits? Has it got any role in preventing convulsions as opposed to treating an acute convulsion? A. Yes, it can reduce electrical excitatory activity in the brain. Q. Is that the recommended treatment for epilepsy? A. There are various treatments. Rivotril is one of them but I don't want to give people-- Q. Going them to clonazepam, Rivotril, is that the first line treatment for epilepsy? A. I'm not sure. Q. There is an authority to prescribe clonazepam and it has to be epilepsy-resistant to other medications. Are you aware of the other medications, the other anti-epileptics, the first line ones? A. In those days, Epilim or Tegretol. Q. That's right. So was there any contraindication for this lady having these medications, especially that the hospital discharged her in 2000 and she mentioned that they started her on two of those agents, namely, carbamazepine and sodium valproate, and was this lady followed up by a neurologist, has the diagnosis been confirmed by a neurologist? PRINCIPAL MEMBER: I think probably there are two questions there, so to be fair to Dr Hofer we might let him answer the first one and then move to the question about the neurologist. WITNESS: She reported she sees a neurologist in Sydney in May 2009? ABOUYANNI Q. Did you have any correspondence from him or her? A. No. Q. Did you seek any correspondence from the details of that neurologist so you can get in touch with them? A. No. PRINCIPAL MEMBER Q. I think the doctor's first question related to whether or not you had thought it was appropriate to prescribe the drugs on which the patient had been discharged and were noted in the discharge summary? A. She stated she was getting Rivotril from other doctors, so if she ran out she could go into a withdrawal. I didn't want to give her 200 Rivotril so I chose the safest, diazepam. PRINCIPAL MEMBER: Is there anything arising out of that question? I would accept if you were going to generally re-examine there might be things you would pick up at that point in time. 127Neither Dr Spark or Dr Nespolon specifically comment on the prescribing of diazepam for a diagnosed epileptic. However, Dr Nespolon helpfully set out the extract from the product information for diazepam in his report. That information notes, as a contraindication for the use of the drug, "Patients with dependence on other substances including alcohol. An exception to the latter is the management of acute withdrawal reactions". Under the heading "Epilepsy" the product information states: When diazepam is administered to persons with convulsive disorders, an increase in frequency and/or severity of grand mal seizures may occur, necessitating increased anticonvulsant medication. Abrupt withdrawn of benzodiazepines in patients with convulsive disorders may be associated with a temporary increase in the frequency and/or severity of seizures. 128It was apparent to us that the practitioner had not taken into consideration the important contraindications for prescribing diazepam for this patient, or the inherent risks in prescribing this drug for her epilepsy. 129We are satisfied that Patient K, at the time of her treatment by the practitioner, was a very vulnerable woman with a complex and significant history of drug abuse which was well known to the practitioner. We are also satisfied that the clinical notes reveal that the practitioner either was, or should have been aware, of this patient's heroin addiction, and methadone use. Prescribing for this patient, in the circumstances known to the practitioner, required careful medical judgment as to whether or not to issue prescriptions for benzodiazepines, and if prescribed, over what period. We are comfortably satisfied that the each of the particulars in respect of the prescribing complaint is satisfied. Patient L and M 130There is no prescribing complaint in respect of either of these patients. Later in these reasons we discuss the records complaints in respect of these two patients. Patient N 131Two prescribing complaints are asserted in respect of Patient N. Each particular of each complaint is admitted by the practitioner. 132This patient was treated by the practitioner from 1995 to July 2009. Over that period the patient was regularly prescribed oxazepam and diazepam. The practitioner knew, as early as 1995, that the patient was on a methadone program. 133Dr Nespolon in his first report explains that the practitioner's prescribing of oxazepam between 1997 and 2001 was excessive. After this date the practitioner continued to prescribe 25 tablets of oxazepam every seven to fourteen days. From March 2001 he commenced prescribing diazepam. Dr Nespolon notes there is "no reason stated for the change". He further opines: [The practitioner] continued to prescribe Benzodiazepines to a patient which he knew was a methadone treated patient. The doses he prescribed were high. There was no clinical rationale in the notes regarding why the patient was receiving benzodiazepines and secondly why different benzodiazepines were used at different times. 134We accept Dr Nespolon's opinion which is based on the evidence in the clinical records. We accept his conclusions. Dr Spark is also critical of the practitioner's prescribing for this patient. We are independently satisfied the complaint in respect of Patient N is proved. Patient O 135Again the practitioner admits all of the particulars of the prescribing complaint in respect of this patient. 136Dr Spark is strongly critical of the practitioner's prescribing in respect of this patient. 137Dr Nespolon's first report sets out a relevant summary of the practitioner's prescribing for this patient. It is relevant to note he refers to the fact that in the clinical notes another practitioner saw the patient in January 2008 and noted she could be benzodiazepine dependent, after which the patient is recorded as "got out of my office". However, subsequent to this consultation, the practitioner commenced prescribing diazepam for the patient. This prescribing practice continued until February 2010. 138We have no doubt that the practitioner was well aware this patient was Hepatitis C positive, and from at least 2008 should not have ignored his fellow practitioner's timely warning that the patient could be benzodiazepine dependent. We are again comfortably satisfied the particulars in this prescribing complaint as established. Patient P 139The complaint in respect of this patient is limited to a record keeping complaint. Patient Q 140The prescribing particulars in this complaint are all admitted by the practitioner. The particulars assert prescribing of diazepam between January 2003 and April 2010, and combined paracetamol 500mg and codeine phosphate 30mg for the patient between January 2003 and December 2009. 141There was minimal cross-examination of the practitioner about his prescribing practices for this patient. This is readily understandable given the particulars are all conceded. Rather the cross-examination was directed to his record keeping. 142Dr Nespolon in his first report refers to the practitioner's prescribing history for this patient including that, from 2005, he commenced prescribing diazepam, and at a later period both diazepam and Panadeine Forte 100 tablets at a time on a regular basis until April 2010. Earlier prescriptions were written for Panadeine Forte on one occasion when the patient reported being punched by her boyfriend and on another occasion for dental pain. 143Although the evidence to support the particulars in respect of this patient is somewhat sparse we are nevertheless satisfied that the practitioner's concessions are appropriately made. We find no cogent basis why the practitioner prescribed diazepam in 2005 and continued to do so until 2010. We also find no clinical basis for the prescriptions of Panadeine Forte in differing quantities (20 or 100) on a regular basis. We are satisfied the particulars in this complaint are proved. We note our findings are consistent with the expert opinions of both Dr Spark and Dr Nespolon. Patient R 144The complaint in respect of this patient is limited to a record keeping complaint. Patient S 145Again all the particulars in respect of the prescribing complaint for Patient S are conceded by the practitioner. It is relevant to note that the practitioner concedes he knew or ought to have known this patient was on an opioid replacement program. The patient had a methadone prescriber from 1993 to January 2006. The clinical notes reveal in 2004 the practitioner did refuse a request for oxazepam although he had prescribed this drug previously. From February 2000 the practitioner regularly prescribed diazepam and Panadeine Forte (the latter for dental pain). This continued without any indication for such prescriptions until April 2010. 146This patient's history provides another example of inappropriate prescribing without the exercise of proper medical judgment, for a purpose not in accord with therapeutic standards and for excessive duration. We accept the expert evidence of Dr Spark and Dr Nespolon in respect of this patient. We find the particulars in respect of this patient established. Patient T 147The particulars in the prescribing complaint in respect of Patient T are conceded in their entirety by the practitioner. 148Although he conceded the particulars in his cross examination the practitioner explained that his prescribing of oxazepam and diazepam for this patient was a withdrawal plan because the patient had become addicted to benzodiazepines. 149There is no dispute this patient was an intravenous drug user who had the fingers of her right hand amputated. She was receiving numerous prescriptions for benzodiazepines from the practitioner from 1996. Dr Nespolon notes there is rarely an indication in the clinical records for the prescriptions. We accept Dr Nespolon's assessment of the practitioner's prescribing conduct in respect of this patient and find it departed significantly from the standard. Patient U 150The practitioner conceded all five particulars in respect of the prescribing complaint for Patient U. The practitioner conceded in cross-examination that he had known from 2003 the patient was on methadone. He also conceded that he had prescribed for the patient because she reported a panic disorder, and he believed what she told him. Again, given the practitioner's concession there was little cross-examination on the prescribing complaint with questions being directed to the practitioner in respect of the records complaint. 151Dr Nespolon sets out a history of the prescriptions for this patient at page 27 of his first report. We accept his summary of the records is an accurate one. He notes, amongst other matters at the time the practitioner prescribed diazepam in July 2003, the patient admitted to "overuse". He also notes that the practitioner, in July 2003, prescribed diazepam for pancreatitis and that this drug is not indicated for that condition. 152We accept Dr Nespolon's evidence in respect of Patient U. We are satisfied the prescribing particulars are established. Patient V 153The complaint in respect of this patient is limited to medical records. We discuss this patient's records later in these reasons. Patient W 154The practitioner admitted he prescribed diazepam for Patient W between the periods set out in the complaint. He did not admit the five particulars of the prescribing complaint. 155In answers given in cross-examination the practitioner explained this patient was the sister of a man who was "one of the worst people you could ever see" and that "he was just out of control" (transcript 26 February 2014 page 87). He went on to explain "I knew he was causing misery in her family". When asked about his initial reason for prescribing diazepam for this patient the practitioner replied: Family anxieties and she'd already been treated for it with Murelax, but I preferred Valium because it's the easiest one to withdraw from. 156The practitioner said he did not suspect the patient was a drug seeker, and that he was not aware she was on an Opioid Replacement Program. There was no evidence before us to indicate this patient was on an opioid replacement program. 157Dr Nespolon is critical of the practitioner's prescribing for this patient. He notes: During 2005, 2006, 2007, 2008 and 2009 Dr Hofer continued to provide this patient with a regular prescription of diazepam 5mg. 50 tablets at a time. This was occurring on a monthly basis. There are rarely any indications associated with the recording of the prescription 158Ms Horvath objected to questions posed to the practitioner about prescriptions for patient W other than six occasions. She submitted "there is a gap between 2004 and 2010 in the complaint" (referring to Schedule W) of the complaint. She also noted that other practitioners at BMC had prescribed Valium and Murelax for the patient, and that the practitioner's clinical notes demonstrate he was trying to wean the patient off Valium in 2010. 159We accept that the complaint particulars are limited by Schedule W, not the practitioner's clinical records. The opinion proffered by Dr Nespolon is based, not on the schedule, but the practitioner's clinical records. In circumstances where we cannot rely on Dr Nespolon's conclusions, based as they are on prescriptions written over a period from 2003 to 2010, we are not satisfied the particulars in respect of this patient is established to the requisite standard. Patient X 160The practitioner conceded he had prescribed diazepam for this patient during the periods set out in the prescribing complaint. He admitted all particulars (a) to (d) and (d). 161The practitioner explained this patient was referred to him by Orana House in 2006 for an ambulatory detox from alcohol. He said that he was not advised by Orana House that the patient had any opiate problems. He explained he did not become aware until 2008 that the patient had an authorised methadone prescriber. 162Dr Nespolon opines that the prescription of diazepam in July 2006, at the time the patient was referred by Orana House was one for which there was a legitimate indication. Dr Nespolon opines that the practitioner should have known the patient was on an opioid replacement program. Certainly liaison by the practitioner with the patient's treating specialist at Orana House would have established that fact. 163We also give weight to Dr Nespolon's observation, based on the clinical notes, that another doctor in the practice in July 2008 noted the patient was on a methadone program and "should not have benzos". 164We agree with and accept Dr Nespolon's opinion that there was, as asserted by the practitioner, a legitimate reason for prescribing diazepam in 2006 when the patient first presented to the practitioner. However, we accept Dr Nespolon's opinion about the ongoing prescribing for this patient particularly after 2008. We are accordingly satisfied that these particulars are established in part. Patient Y 165The practitioner admitted that he prescribed diazepam for this patient as set out in the schedule, and admitted all particulars except particular (d). That is, the practitioner asserted he did not know this patient was on a Opioid Replacement Program. 166Ms Horvath submitted that the patient's disclosures to the practitioner occurred over a period of time including that he had a gambling addiction. She submitted that although the practitioner knew the patient had a drug history some 15 years prior to his attendance at BMC, that the practitioner had no reason to suspect the patient was on an opioid replacement program. 167Dr Nespolon states that the practitioner regularly prescribed diazepam from 2007 to 2010 without any indication for the prescription. We find that the practitioner's prescribing for this patient was significantly below the standard expected of a practitioner of the equivalent level of training or experience of the practitioner. Patient Z 168The practitioner, whilst admitting he had prescribed diazepam for this patient between 4 April 2005 and May 2005 as set out in the schedule to the complaint, did not admit any of the three particulars. He did admit all particulars in respect of his prescribing for the patient of the same drug between 27 February 2007 and 16 September 2009. 169Ms Horvath submitted that the four prescriptions written by the practitioner for diazepam during April and May 2005 were within therapeutic guidelines. She pointed out that the "patient had recently had surgery and had a T-tube in her stomach". She also noted that the clinical notes of the practitioner and the photocopies provided to Dr Nespolon were difficult to read, and this probably explained why the expert did not comment on this aspect of the notes. We accept this submission of Ms Horvath, and are not satisfied that the first aspect of the complaint in respect of Patient Z is established. 170However, Ms Horvath candidly noted the second part of the complaint relating to prescribing between February 2007 and September 2010 was substantially admitted. 171Dr Nespolon is strongly critical of the practitioner's prescribing for this patient. He notes that although there was no indication for temazepam that the practitioner wrote regular monthly prescriptions for this drug during the period 2008 to 2010. We accept Dr Nespolon's opinion in respect of this practitioner's inappropriate conduct in prescribing for this patient in respect of the second period. The records complaints 172As earlier noted, the HCCC assert that the practitioner failed to keep proper medical records in respect of all 26 patients named in the complaint. Cross-examination of the practitioner was not directed to each relevant period in the Amended Complaint, rather he was cross-examined generally as to his record keeping in respect of each patient. 173The relevant provision of the Health Practitioner Regulation (NSW) Regulation 2010, Schedule 2, is set out below (it substantially replicates the repealed regulations): Schedule 2 Records kept by medical practitioners and medical corporations in relation to patients 1 Information to be included in record (1)A record must contain sufficient information to identify the patient to whom it relates. (2)A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3)The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4)A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5)Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content (1)In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2)A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3)All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1)An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2)Each entry in a record must be dated and must identify clearly the person who made the entry. (3)A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if: (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the medical practitioner ensures the record is made and kept in accordance with this Schedule. Concessions made by the practitioner 174The practitioner conceded differing particulars in respect of each patient's records. Unfortunately, subject to our conclusions about particulars (iii) and (iv) set out below, because of the manner in which the particulars of the Complaint are set out, we have no alternative but to deal individually with the particulars in respect of each patient. However, it is unnecessary that we isolate the particulars to specific time periods except because, as noted above, the wording of the applicable regulation in each period is identical. General comments about the practitioner's record keeping 175While we are conscious that neither Dr Spark or Dr Nespolon had the benefit of results of investigations ordered by the practitioner when expressing opinions on the medical records, each expert found on his examination of the records very poor record keeping with, in the majority of the patient files, no entry other than a record of the drug prescribed. This was conceded by Ms Horvath in her closing submissions. She candidly, and we would say most appropriately, said of the practitioner "He is not seeking to defend his notes. He is not seeking, in the vast majority of cases to defend his notes and I think that is apparent by the fact that the critical subparagraphs were admitted on I think probably 90 per cent of the cases." 176Having regard to the opinions expressed by both Dr Spark and Dr Nespolon, and our own examination of the practitioner's notes we accept that Ms Horvath's submissions are soundly based and we accept them in their entirety on this point. Patient A 177Detailed comments about the records for this patient are unnecessary. The practitioner concedes he did not record the patient's medical history, the progress of the patient at each visit, any diagnoses, plans, nature and results of treatment for the patient. The concessions are properly made given the state of this patient's records. 178The practitioner denies that he failed to record sufficient history of previous or ongoing drug use other than prescribed by him, and details of the patient's mental state. 179The practitioner said in response to questions posed to him in cross-examination that he did not record the patient's history of drug use because he did not suspect him of being a poly drug abuser. His explanation of why he did not record the patient's mental state was: In general terms I make mention of patient's mental state if their mental state seems somewhat perturbed or disturbed or you know out of normal character ... So I generally don't make a note about - I don't do a medical [sic] state examination on people that are behaving appropriately and are polite and forthcoming with information. 180Ms Horvath made submissions on two aspects of the particulars as set out in the Amended Complaint which we accept to be relevant. She pointed out that concessions had not been made by the practitioner in almost all cases about recording a patient's mental state, (sub-paragraph (iii)) or that he could make concessions about the particulars contained in sub-paragraph (iv) which deals with the recording of investigations. She submitted that this was because the Amended Complaint as pleaded was unfair to the practitioner. It required him to make a concession when the particular was not precise, ranged on some occasions over a ten year period, and in the case of certain patients, there are records of tests being ordered and copies of results of such tests in the particular patients' records. Ms Horvath said: Had the complaint been drafted in a narrower way and there had been perhaps some complaint about particular investigations not having been recorded then ... it would have been much more likely to be admissions as there have been in relation to the vast majority of the notes but when a doctor is faced with a very broad allegation that they haven't recorded any investigations over a ten year period it's very difficult for the practitioner to make such an admission when the files are to the contrary. 181We accept Ms Horvath's submission in respect of these two particulars. Given the practitioner's admissions, and the experts' opinions, we are satisfied the allegations in respect of this patient's records are otherwise established. Patient B 182Concessions in respect of this patient save for particular (iii), (iv) and (viii) are made by the practitioner. Save and except for particular (viii) we repeat our findings in respect of Patient A. 183The practitioner was not extensively cross-examined about his records for this patient. An examination of the notes reveals the practitioner did record the need to reduce this patient's benzodiazepines, and from 2000 notes about the patient being on a methadone program. Whilst, as Ms Horvath conceded, the records are not what the practitioner would now keep, we accept another practitioner could continue the management of the patient's case. We also accepted there were records of investigations. We find particulars (iv) and (viii) are not established to the requisite standard, but otherwise find the particulars proved. Patient D 184The practitioner did not concede particulars (iii), (iv) and (viii) in respect of this patient. Ms Horvath however in her final submissions did not seek to make any submissions in respect of this patient, other than her general submission about paragraphs (iii) and (iv) which we have accepted. 185Dr Nespolon is critical of the GP Mental Health Care plan prepared by the practitioner. He records that no special advice or other instructions in respect of this patient are recorded. 186We find, having regard to our earlier findings in respect of the quality of the practitioner's records, that the particulars in respect of this patient are established save and except in respect of paragraphs (iii) and (iv). Patient E 187None of the particulars in respect of this patient are conceded by the practitioner. In cross examination the practitioner conceded there was insufficient history in his notes for another practitioner to take over management of the patient, there were no details of any examination, that he had made no diagnosis of the patient or any treatment plan for him. 188The practitioner described this patient as being one "from the bad old days" (transcript 26 February 2014 page 43) and said he had only seen the patient on one occasion. 189Dr Nespolon was not strongly critical of the practitioner in respect of this patient who was only seen on one occasion. We accept Dr Nespolon's opinion. Except for the particulars admitted by the practitioner in his cross examination, we do not find the particulars in respect of this patient established. Patient F 190The practitioner did not admit particulars (ii), (iv), (v) and (viii) in respect of the records of this patient. The records disclose that the practitioner did order pathology tests for this patient and results are retained in her records. He also made limited entries about the patient's progress. 191Dr Nespolon opines at page 40 of his first report that "The notes are best described as a medication record. It would be impossible for a doctor picking up these notes to follow this patients[sic] medical management." We concur with Dr Nespolon's opinion. We also note that Dr Spark found the notes significantly below the expected standard. We are satisfied that particulars (ii), (v) and (viii) are established. Patient G 192The practitioner did not admit particulars (iv) and (viii) in respect of this patient. In response to questions posed in respect of (viii) the practitioner said "I summarised her issues in the last entry and the next doctor can take over from that" (transcript 26 February 2014 p 52). 193We repeat our earlier findings about particulars (iv). Ms Horvath submitted we should find that particular (viii) is not proved because there was sufficient material in the notes for another practitioner to continue management of the patient. Dr Nespolon in his supplementary report notes that the records for this patient are significantly below standard and attract his strong criticism. He does not however directly comment on whether or not there is sufficient material for another practitioner to continue management of the patient. While we are satisfied that the majority of the particulars in respect of this patient's notes are established, we do not find particular (viii) is proved to the requisite standard. Patient H 194The practitioner did not admit particulars (i), (ii), (iv) or (viii) in respect of this patient. 195In his cross-examination the practitioner asserted that he was not in breach of (viii) because "her case is punctuated with many entries about the various stresses and difficulties in her life" (transcript 26 February 2014 page 55). 196In her submissions Ms Horvath referred to this evidence of the practitioner and also pointed out that the records disclosed frequent entries referring to the need for this patient to reduce her benzodiazepine use. 197The practitioner conceded in cross-examination that he could have established whether this patient was on an Opioid Replacement Program if he did telephoned the methadone clinic, but he had not done so. 198We are not satisfied that the HCCC has establish to the requisite standard particulars (i) and (viii) in respect of this patient. We repeat our earlier findings about particulars (iii) and (iv). However we are satisfied the other particulars are established to the requisite civil standard. Patient I 199The practitioner did not admit particulars (i), (ii), (iv) and (viii) in respect of this patient. 200Ms Horvath submitted sufficient drug use in respect of this patient had been recorded after the practitioner became aware of the patient's methadone use in 2006, and that it is apparent from the records that other doctors had sufficient information and were able to treat this patient. 201In his cross-examination, the practitioner pointed out that in the complete notes there were records of referrals to pathology and for treatment of the patient's left ankle. We are satisfied that particular (iv) is not established. 202The practitioner sought to explain the patient's drug usage other than as prescribed by him. As with a number of the patients, the practitioner proffered the explanation that he did not assess the patient as a drug seeker. But the practitioner noted the patient had come "off methadone", but provides no further details. We are satisfied the notes do not record a sufficient history of ongoing drug use by the patient other than prescribed by the practitioner. Consequently we are satisfied particular (ii) is established. We accept Ms Horvath's submission in respect of particular (viii) and find that particular is not established. Patient J 203The practitioner denies each and every particular in the records complaint in respect of this patient. 204The practitioner was cross examined about his notes up to 2008 on the basis that he had not recorded any progress of the patient. The practitioner explained this was because "every visit had to do with the same situation". Mr O'Donnell posed the following question to the practitioner: Q. How would another practitioner looking at those notes know how the patient was going through that period? A. He would ask the patient. The patient would say I've had this problem since the surgery all these years ago" [transcript 26 February 2014 p 64] 205Dr Nespolon was critical of the practitioner's record keeping in respect of this patient finding it significantly below the standard. 206The patient's records disclose the patient had undergone a spinal fusion approximately seven years before consulting the practitioner. The notes reveal prior to the patient's consultation with the practitioner another doctor had referred to patient back to his treating surgeon for a review and MRI. 207Ms Horvath submitted that, while the notes are not of the standard that the practitioner would now keep, they do disclose the patient's diagnosis, namely, that he was being treated for chronic pain. She also said the fact that the reason for prescribing naproxen and diazepam was not recorded on each occasion was because the consultation was to obtain a repeat prescription. In summary, she submitted the notes complaint was not established. 208While we accept that the records do disclose the patient's medical history, and the investigations carried out namely the X-ray of the patient's back, and that many consultations may have been for repeat prescriptions, it is clear that the practitioner did not carry out any active investigation of any drug use by the patient. Further, the practitioner's own evidence in cross-examination does not support a finding that there was sufficient information recorded about this patient to allow another registered medical practitioner to continue the patient's management. In summary, we are satisfied the records complaint is established except for particulars (iii) and (vii). Patient K 209The practitioner did not admit particulars (i), (ii) and (ix) in respect of the record keeping complaint. Ms Horvath noted that the record keeping complaint in respect of this patient was substantially admitted. As to the balance of the particulars, Ms Horvath pointed out that Dr Nespolon had not had the benefit of the discharge summary from Port Kembla Hospital in preparing his report. She further submitted not only had the practitioner prescribed benzodiazepines for this patient, but so had other doctors in the practice. 210Mr Horvath, very fairly, pointed out that when expressing his opinion favourable to the practitioner, Dr Spark had not had the benefit of the 2009 prescribing records. 211We accept, in the circumstances referred to by Ms Horvath, that care is necessary when referring to the experts' opinion. 212We are not satisfied that particular (i), (ii) and (ix) have been established to the requisite standard. But the majority of the particulars as conceded by the practitioner reveal that the record keeping in respect of this patient was substantially inadequate. Patient L 213The practitioner does not admit particulars (ii), (iv), (v), (vi), (vii) and (viii) in respect of his record keeping for this patient in respect of notes for 13 November 2009. He did not in his response document traverse the records complaint in respect of 15 September 2009 which appears in the amended Complaint. 214Dr Nespolon opines that the practitioner's record keeping rarely noted a diagnosis and did not note the reason for a consultation. 215Ms Horvath points out that in respect of all other patients there is no complaint that the practitioner ever failed to record a patient's attendance. She submits there is no corroborative evidence to support a consultation having occurred on 15 September 2009 other than the PBS schedule, and that a transposition error may have occurred. We accept her submission. The particulars in respect of an attendance on 15 September 2009 are not established. Patient M 216It is relevant to note that Dr Nespolon experienced difficulties in reading the notes in respect of this patient because of poor photocopying. Notwithstanding this difficulty he noted that the record keeping was below standard, but it did not attract his strong criticism. 217Ms Horvath drew our attention to the fact that the complaint about this patient is limited to record keeping, and that the practitioner had substantially admitted the complaint save and except for the particular alleging failure to record previous and ongoing drug usage. She also submitted that there was sufficient evidence for another doctor to take over the management of the patient, and this in fact had occurred. 218The notes in respect of Patient M reveal a note on the patient's first attendance that he had been a "pot smoker" for 14 years. The next consultation note recorded "going to rehab", and subsequent entries recorded "denies alcohol or pot" and "using heroin for past six months". 219We find that the record keeping was below standard. However we are not satisfied that particulars (ii) or (viii) are established to the requisite standard. Patients N and O 220In her submissions Ms Horvath dealt with these two patients together. It is convenient that we too adopt that approach. 221All particulars in respect of these patients, except particular (iv) were admitted. We repeat our earlier findings in respect of particulars (iv). Save and except that particular, our examination of the notes leads us to the conclusion that the concessions were properly made. Patient P 222This patient was seen by the practitioner on only three occasions. The practitioner disputes all the particulars in respect of the patient. 223Dr Nespolon opines the record keeping is below standard but he is not strongly critical of the notes in this instance. We concur with his opinion. The practitioner has recorded the patient's long history of drug addiction, her proposed attendance at a crisis centre, and her relapse into heroin use. Patient Q 224Again the practitioner conceded all the particulars except (ii), (iii), (iv) and (viii). 225We note that in the records produced by the practitioner there are records of the investigations which were conducted in respect of this patient which were not available to the experts. 226The practitioner disputes that he failed to record the patient's mental state. Ms Horvath drew our attention to the record of 8 September 2004 when he prescribed Avanza, and thereafter noting the patient was responding well to that drug. 227 Dr Spark's opines, at page 6 of his report dated 28 December 2011 opines as follows: There is a brief clinical summary at the front of the record. [The practitioner] has made multiple entries in the notes between 2003 and 2010. These are always brief and mostly just consist of a record of an S 4D drug prescription. This is significantly below the expected standard and invites my criticism. I would have been strongly critical if I was unable to follow the clinical progress of the patient from the notes. This is not the case here [original emphasis] 228Dr Nespolon opined that the reason for a consultation was generally absent, relevant clinical findings were absent, and there was no recommended management plan. 229We are satisfied that the records complaint in respect of this patient is substantially satisfied. While we agree with the opinion expressed by Dr Nespolon, we do not find particulars (ii), (iii), (iv) and (viii) are established to the requisite standard. In reaching this finding we agree with and adopt Dr Spark's opinion and the submissions made by Ms Horvath. Patient R 230The claim in respect of Patient R can be disposed of briefly. The practitioner conceded that his record keeping was deficient. That is apparent from the records themselves. However, he says that there were no investigations carried out in respect of this patient, and that he did not record the patient's mental state because, on his evidence, there was nothing to report. Patient S 231The practitioner admits the record keeping complaint in respect of Patient S, save and except particular (iv). We repeat our earlier findings about this particular. We accept Dr Nespolon's opinion that the record keeping did not meet the standard (or comply with the regulations) and the particulars save and except for particular (iv) are established. Patient T 232As is clear from the prescribing complaint this patient has a long term drug addiction problem. The practitioner admits the record keeping complaint in respect of this patient save for particulars (ii), (iii) and (viii). The patient's drug history is recorded in the notes as are her methadone doses. Copies of investigations are retained in the records. 233Ms Horvath submits that the details in the notes are adequate, and other practitioners did treat this patient. We accept Ms Horvath's submissions. Other than the matters conceded by the practitioner, we accept that the remaining particulars ((ii), (iii) and (viii)) are not established. Patients U 234Although the practitioner essentially conceded the prescribing complaint in respect of patient U, he did not concede that he had failed to record the patient's history, or her drug usage other than prescribed by him. Ms Horvath submitted that the patient's medical history, while not as comprehensive as he would record today, was adequate. She pointed out that, for whatever reasons, this patient's care had been taken over by other practitioners at the BMC. She also pointed out that records of investigation were maintained in the patient's file. 235Dr Nespolon's supplementary report in respect of this patient and patient W is relevant. He comments that the record keeping in respect of the two patients falls significantly below the standard and attracts his strong criticism. He also notes in his report that a diagnosis in respect of Patient U is rarely made. 236The practitioner in answer to questions posed in cross-examination said "Any doctor could continue to manage a reduction of her Valium and there's plenty of documentation to do with her stroke and diabetes, her obesity" [transcript 26 February 2014 p 86). We accept that evidence as accurate. 237Overall we accept Dr Nespolon's opinion, subject to our conclusion that particulars (ii) and (viii) are not proven to the requisite standard. Patient V 238The complaint about this patient is limited to record keeping. The practitioner conceded his record keeping was deficient in many respects. He did not however admit that he had failed to record the patient's medical or drug history. We observe that the notes do refer to the patient commencing to re-use heroin. 239The records also contain a detailed letter from Dr Pakula who was also treating this patient. Dr Nespolon noted that patient V "represents an extremely difficult patient with multiple mental illnesses and drug addiction." He expressed the view the notes contained an adequate summary sheet, that a diagnosis was recorded "at times" but there was an absence of a management plan. He is critical of the practitioner's record keeping and in his supplementary report opines that the failure in record keeping attracts his strong criticism. 240Overall, we are satisfied that the record keeping complaint in respect of this patient is, as partially admitted by the practitioner, inadequate. However we are not satisfied that particular (ii) and (viii) are established. Patient W 241The practitioner conceded all particulars of the record keeping complaint except particular (i), (ii) and (iii). 242The Schedule to Amended Complaint does not include all of the prescriptions or record keeping periods for the patient. Both experts' reports are based on documents which fall outside the relevant time periods in the Amended Complaint. We have therefore disregarded the expert reports in respect of the patient. 243We accept the material in the records is sufficient to satisfy the regulation and that particulars (i), (ii) and (iii) are not established. Our examination of the balance of the records demonstrates the concessions made by the practitioner in respect of this patient are appropriate. Patient X 244The practitioner again did not concede particulars (i) (ii) (iii) (iv) and (viii). It is unnecessary we repeat our earlier findings about particular (iv). While Ms Horvath submitted we should find the history recorded by the practitioner is adequate, that is not the opinion of Dr Nespolon who notes the reasons for a consultation are rarely noted, and expresses a similar opinion about the lack of recording of a diagnosis. 245We accept the records contain investigation reports, a fact not known to Dr Nespolon at the time of preparation of his reports. 246From our assessment of this patient's records, and having regard to the opinion expressed by Dr Nespolon, we are satisfied that the particulars, other than (iv) are established. He opines "the notes show no discernible clinical management strategy. The notes are best described as a medication record. It would be impossible for a doctor picking up these notes to follow this patients[sic] medical management". Patient Y 247The practitioner did not concede particulars (i), (ii), (iii), (iv) and (viii) of the record keeping complaint in respect of this patient. However during the hearing it was conceded that the practitioner had failed to record the patient's previous drug use. Other than a submission that this patient gradually made admissions to the practitioner for example that he had a gambling addiction, no submissions were made to support the particulars disputed by the practitioner. 248This patient was a professional with whom the practitioner had worked at the Port Kembla Hospital. Other than particular (iv) our assessment of the records against the regulations is in accordance with the opinion expressed by Dr Nespolon who notes that the practitioner's records fall significantly below the required standard, and attract his strong criticism. Patient Z 249The practitioner conceded all particulars other than (i), (ii), (iv) and (viiii). 250The records reveal that other practitioners concurrently treated this patient on and from 2006. Dr Nespolon notes in his supplementary report that the practitioner's record keeping in respect of this patient is substantially below the standard expected. 251We concur with Dr Nespolon's opinion save in respect of particular (iv). Unsatisfactory professional conduct 252The practitioner did not dispute that his prescribing conduct and failure to keep proper medical records constituted unsatisfactory professional conduct. 253The practitioner's statement, clinical records, and oral evidence demonstrated his knowledge, skill or judgment possessed or care exercised was significantly below the standard reasonable expected of a practitioner of an equivalent level of training or expertise. 254The practitioner relied on 1999 guidelines of the NSW Department of Health protocols for drug detoxification, and had not keep up to date with any later relevant publications. Dr Nespolon found, and we accept, the practitioner prescribed drugs that were not indicated for the patient's condition in a number of circumstances. His prescription of diazepam for Patient K was of particular concern. We also found that he failed to make any real effort to obtain drug histories from the majority of the patients, to collaborate with their methadone providers, or to set and enforce realistic plans within an appropriate time frame to withdraw from benzodiazepines up to 2010. As our discussion of the individual patients demonstrates, we generally accept and prefer Dr Nespolon's assessment of the practitioner's prescribing practices to that of Dr Spark. 255We are satisfied that, in many cases, the practitioner's ongoing prescription of benzodiazepines for addicted patients was improper, and without appropriate clinical justification or management. 256Our examination of the practitioner's records up to their migration to the electronic system, Medical Director, discloses the records generally fail to comply with the regulations in force from time to time. The practitioner admitted in his statement (paragraph 28) that an audit of his medical records in 2011 by Dr Ng was "unfavourable". 257We have earlier set out Dr Nespolon's specific criticisms of the medical records in respect of particular patients. We note that Dr Spark was also critical of the practitioner's failure to keep proper medical records. We are comfortably satisfied that the practitioner failed, for the majority of patients referred to in the Amended Complaint, to keep proper records as required by the regulations in force from time to time. 258Our findings in respect of the two limbs of the Amended Complaint leave us in no doubt that the practitioner's concession that his conduct amounted to unsatisfactory professional conduct is a proper one. Professional misconduct 259We have already set out the statutory definition of professional misconduct found in s 139E of the National Law. Cases heard prior to the introduction of the present statutory definition of professional misconduct have relevance in understanding what is meant by the term. One of the earliest statements of principle is found in the English decision of Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely: [Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency. 260In Qidwai v Brown (1984) 1 NSWLR 100 at 105 Priestly JA described the conduct in this way: ... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence... 261Mr O'Donnell referred us to the discussion of the term by Kirby P (as his Honour then was) in Pillai v Messiter (No 2) 1989 16 NSWLR 192. In that case the NSW Court of Appeal was dealing with an appeal from a decision of the Medical Tribunal of NSW. The Medical Tribunal had found a medical practitioner should be removed from the register for "misconduct in a professional sense" (the then relevant statutory provision). At the time of the hearing of the appeal against the Medical Tribunal's decision a new legislative provision had been enacted dealing with "professional misconduct". Although the new provision was inapplicable to the appeal, his Honour explained, without deciding, that the new statutory test for "professional misconduct" "may introduce a wider class of conduct than has hitherto been regarded as relevant". Kirby P went on to explain that the concept of "misconduct" may include: "gross negligence ...particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient". His Honour further explained at 200: Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner [citations omitted]. 262The recent cases discussing unsatisfactory professional conduct and professional misconduct focus on the wording of the relevant statute and have moved away from "the language of moral obloquy" referred to in earlier decisions with peers now expressing their views "in terms of strong criticism rather than 'strong reprobation'": see Lucire v Health Care Complaints Commission [2011] NSWCA 99; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70 ). 263Although the statute refers to conduct of such serious nature that it may lead to suspension of cancellation of a practitioner's registration, such a result does not automatically follow a finding of professional misconduct. See HCCC v Karalasingsham [2007] NSWCA 267 per Basten JA at [67] where his Honour said: The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify suspension or removal of the practitioner's name from the register: the Act, s 37. However, it is clear that the definition is focused on the nature of the conduct, which must have the capacity to justify such an order, 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 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). 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). 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) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ). 264The statutory provisions referred to by Basten JA in Karalasingham are those found in the now repealed Medical Practice Act. However those provisions are substantially re-acted in the National Law (see s 149A (1), s 149B and s 149C). Professional misconduct - findings 265Ms Horvath readily acknowledged the conduct conceded by the practitioner amounted to unsatisfactory professional conduct, but submitted it was "not a deliberate departure from accepted standards". She further submitted that although the HCCC relied on publications from New South Wales Health in 2006 and 2008 she said there was no evidence such publications were generally reviewed by general practitioners. She sought to distinguish the facts in this case from those in HCCC v I Mascio 18 October 2012 where a practitioner's prescribing resulted in the imposition of conditions, which the practitioner subsequently breached. She further sought to distinguish the practitioner's conduct from that of the practitioner in HCCC v Fiay (NSWMT 31 August 2012) by reason of the nature of the drugs prescribed in that case. While facts in this case are not on "all fours" with those in Mascio or Fiay, the conduct of this practitioner was long standing and involved a significant number of vulnerable patients. In our view, those facts, which are different to the facts in Fiay and Mascio are significant and relevant to our conclusions on this topic. 266We accept that the publications referred to in the material relied on by the HCCC are publications produced for government employees. However, as we have earlier noted, the practitioner, although treating a large cohort of vulnerable patients with drug problems, took no steps post 1995 to uptake his knowledge of appropriate treatment for such patients until his discussions with Dr Pakula, his treating psychiatrist about a limited number of his patients. 267We find that the practitioner's inappropriate prescribing for the twenty patients name in the Amended Complaint was a significant departure from the standard reasonably expected of a practitioner of an equivalent level of training or expertise. His behaviour was repeated for a significant number of patients, and in some cases over many years without the exercise of proper clinical judgment. His treatment for these patients did not fall into the "second scenario" which would have attracted Dr Spark's praise, rather the care, skill and judgment he exercised fell squarely within the "first scenario" described by Dr Spark. The evidence disclosed several instances of prescribing of drugs not indicated for the patient's diagnosis. 268In reaching our conclusions we have had regard to the comments of Kirby P in Pillai at [200]. His Honour described the type of conduct which could constitute professional misconduct as "...conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner". 269We have also taken into account the comments of Hope JA with whom Reynolds and Hutley JJA agreed in Spicer v NSW Medical Council (unreported CA No 3 of 1981) where his Honour said: In my opinion it is clear beyond argument that the proper handling and prescription of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard of the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. 270Not only did the practitioner's clinical treatment of these patients constitute a significant departure from appropriate clinical practice, but his record keeping for all 26 patients was woefully inadequate, and in the majority of instances did not comply in full with the relevant regulation in force from time to time. 271In reaching our findings we take into account the practitioner's own evidence that he was alerted to the fact that his prescribing of benzodiazepines was outside the norm in 2008 when contacted by the PSB. Although he did commence to take some steps thereafter to remedy his prescribing practices, he continued to prescribe for many of these patients for a further significant period of time. His record keeping did not improve over many years until the audit by Dr Ng in 2011. When these matters are considered in combination they are of such a serious nature as to justify an order for suspension or deregistration. We are therefore comfortably satisfied that the complaint of professional misconduct is established. Protective orders Relevant principles 272The purpose of protective orders has been explored in a number of authorities in the context of disciplinary proceedings including those involving health practitioners. Those principles are discussed in cases including HCCC v Litchfield [1997] NSWSC 297; (1977) 41 NSWLR 630; Bannister v Walton (1993) 30 NSWLR 699. The primary purpose is reflected in the principle and objective set out in the National Law (s 3A) which we have set out earlier in these reasons. In summary, in making protective orders the Tribunal must bear the following considerations in mind: (2)the protection of the public is the paramount consideration; (3)the maintenance of the high standards of the medical profession; (4)deterring not only the particular practitioner, but others who may stray from the appropriate standards: a reminder to the profession; and (5)to emphasis the unacceptability of the conduct involved; (6)that while not intended to be punitive the orders nevertheless may have such an effect. The evidence, discussion and findings 273Although the HCCC submitted, as its primary position, that an order should be made cancelling the practitioner's registration, in the alternative, the HCCC proposed the imposition of a number of conditions on the practitioner's registration. The practitioner did not oppose the imposition of conditions other than the condition that he attend a Board appointed psychiatrist, and that the conditions be critical compliance conditions. Rather, he agreed he would not oppose an order that he continue to attend his long standing treating psychiatrist whom he has seen regularly for a significant period of time. 274We did not find an order for de-registration to be appropriate in this case for the following reasons. 275The evidence before us demonstrated two major changes in the practitioner's conduct of his practice. First, he took positive steps commencing gradually from 2007 to change the nature of his prescribing practices. He candidly admitted he had taken too long in some cases to either cease prescribing benzodiazepines for some patients or refer them to other professionals for assistance for their addiction. He did, after the introduction of Medicare benefits became available for patients to consult a psychologist, make some appropriate referrals. By 2010 the cohort of his patients with long-term addiction had been directed to other practitioners. This action demonstrates the practitioner has insight into his former inappropriate prescribing practices. 276The second significant change to the conduct of the practitioner's practice occurred with the introduction, after the unsatisfactory audit by Dr Ng of his medical records, of the electronic record system, Medical Director. The practitioner acknowledged he had sought and obtained helpful advice from Dr Ng. We accept that the practitioner made a very significant effort, including over many weekends, to migrate, not only his own records, but that of three other practitioners at BMC to the Medical Director system with subsequent substantial and significant improvement to his medical record keeping, and we infer that of the BMC. 277The other significant factors we have taken into account in determining the appropriate protective orders in this case were: (1)the practitioner's regular voluntary attendance on his treating psychiatrist Dr Irwin Pakula ("Dr Pakula"); (2) the voluntary surrender by the practitioner of his s 4 D prescribing rights (which he does not presently seek to have re-instated); and (3) the practitioner's compliance with the conditions imposed on his registration under s 150 of the National Law which have now been lifted. 278In reaching our conclusions we have taken into account the matters, particularised above, and are satisfied about the steps the practitioner has taken to overcome the past serious deficiencies in his clinical care of a cohort of his patients and prescribing for them, his very sensible acceptance of Dr Ng's advice, and the implementation of an electronics record system. We do however take the view that the serious nature of the practitioner's long-standing conduct warrants that he should be reprimanded. 279We turn now to the alternative orders sought by the HCCC. As earlier the only conditions the practitioner opposed were one which requires him to attend on a psychiatrist nominated by the HCCC on a three monthly basis, and making the conditions "critical compliance" conditions we only address those proposed conditions. We are independently satisfied the remaining proposed orders and conditions are appropriate 280Dr Pakula, who provided a report on behalf of the practitioner and gave oral evidence to the Tribunal, was an impressive witness. He explained in a report dated 4 November 2013 that he first treated the practitioner in July 2003 when he was subject to the "control of the Medical Board". He noted that, at that time, the practitioner was on Avanza. Later in his report he noted that the practitioner's mood "at times has been low". He explained he sees the practitioner on average every three months. 281In his oral evidence Dr Pakula explained that he had been treating the practitioner for a long term depressive disorder, with psychotherapy and Avanza. While he expressed the opinion that it was preferable that the practitioner did not have the capacity to prescribe S 8 and S 4D drugs, he said that he did not find the practitioner's depressive ordered impaired his capacity to practice. We accept Dr Pakula's evidence on this point. 282We accept the practitioner has established an appropriate professional and therapeutic relationship with his long-term psychiatrist and has obtained appropriate treatment for his depression. There was no suggestion in Dr Pakula's report or oral evidence to raise any concern about the practitioner's current mental health or his capacity to practise. 283In these circumstances we take into account the comments of the Court of Appeal in HCCC v Litchfield [1997] NSWSC 297. We see no rational basis to impose an order under s 149A 1 (c). The practitioner does not currently suffer a psychiatric condition which renders him unfit to practice. Rather, he has sensibly maintained an ongoing therapeutic relationship with a specialist psychiatrist in whom he has clearly established a relationship of professional trust and rapport. As the practitioner is prepared to be bound by an order to maintain that relationship, or a similar relationship with another psychiatrist of his choice, we will include such an order in our orders. However, we find no basis to require the practitioner to undergo examination by a Board appointed psychiatrist as proposed by the HCCC. 284The HCCC seek the conditions should become critical compliance conditions. Again, we are not satisfied such a condition is necessary to protect the health and safety of the public. The practitioner has at all times in the past fully complied with conditions imposed on his registration. His past behaviour gives us confidence that it is unlikely he would breach any conditions or orders now imposed. Costs 285The HCCC sought an order that the practitioner pay its costs. The legal representatives for both parties asked that we not "set-off" any costs order made at the conclusion of the proceedings against our costs order made in favour of the practitioner at the commencement of the proceedings. Costs relevant principles 286The Tribunal is empowered to make a costs order under Schedule 5D cl 13. The relevant principles to be applied in respect of costs in health disciplinary proceedings are subject of considerable appellate authority. 287The relevant principles for the purposes of these proceedings are referred to in HCCC v Simonsen [2013] NSWNMT 26 as follows: The relevant principles having recently been reiterated in HCCC v Philipiah [2013] NSWCA 342 at [42-45]. The discretion to be exercised in the award of costs is one to be exercised judicially.... As noted in the HCCC's submissions, unlike earlier legislation, the statutory provision in respect of costs in the National Law does not include a restriction on making a costs order unless there are special circumstances. Rather, the authorities now direct the Tribunal to generally order that costs should "follow the event" unless there are disqualifying circumstances from making an order in favour of the party seeking costs. Hardship of the losing party is not a relevant consideration. However, disqualifying factors may include matters such as the failure of the HCCC to establish professional misconduct if alleged in a complaint, to establish all the particulars of the complaint, or if the HCCC conducts proceedings in an oppressive manner, including taking procedural steps which unnecessarily increase the expense of the hearing. An early admission of a complaint may invoke the discretion (see Health Care Complaints Commission v Rolleston [2013] NSWMT 12). 288We have taken into account in considering the costs order sought the fact that the majority of the particulars asserted in the Complaint by the HCCC have either been conceded or proved to the requisite civil standard. In other words, the HCCC has been generally successful in these proceedings. Prima facie, we accept the HCCC is entitled to a costs order in its favour for the proceedings save and except 25 February 2014. That day was subject of a separate application and resulted in an indemnity costs order in favour of the practitioner for reasons given during the course of the hearing. 289But there are circumstances relating to the practitioner in these proceedings which must also be weighed and balanced against the HCCC's position. The practitioner, well before the hearing date, on the filing of his material in February 2014 included a document entitled "Response to the Complaint". In that document the practitioner traversed each and every particular in the complaint and made a significant number of concessions. We note that in his opening Mr O'Donnell said on his estimate approximately 50 per cent of the particulars were admitted. 290Ms Horvath also cogently pointed out that further admissions would have been forthcoming from the practitioner had the HCCC correctly set out the appropriate regulations in respect of each record complaint. We accept that submission is soundly based. The error in the pleadings caused the loss of a day allocated for the hearing to enable the complaint to be amended. That loss has been recognised however in our earlier costs order, but it does not diminish the fact the error precluded the practitioner making further concessions which likely would have shortened the remaining hearing time. 291Balancing the relevant factors, in the exercise of our discretion, we are satisfied the appropriate order is that that practitioner pay 50 per cent of the HCCC's costs. 292Section 60 (4) (b) of the NCAT Act provides if the Tribunal makes a costs order, it may order costs be assessed in accordance with Division 11 Part 3.2 of the Legal Profession Act 2004 (NSW). We will incorporate such provision into our costs order. ORDERS 1.Dr Gerhard Hofer ("the practitioner") is reprimanded. 2.Pursuant to s 149 A (1) (b) of the Health Practitioner National Law (NSW) ("the National Law") the following conditions are imposed on the practitioner's registration: (a)The practitioner shall not possess, supply ,administer or prescribe any "drug of addition" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (b)The practitioner shall provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Services Branch and consented to an order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug within 14 days of these orders. (c)The practitioner shall not possess, supply or administer or prescribe any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). 3. Pursuant to s 149A (1) (d) of the National Law it is ordered that the practitioner shall: (a)Within 12 months of the date of this order, or such further time as may be agreed with the Medical Council of NSW ("the Council") complete at his own expense the distance education course "issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Victoria provided however if such course is not offered in 2014/2015 such other course as may be nominated by the Council; (b)Within 2 months of the date of this order, or such further time as may be agreed in writing with the Council provide evidence in writing to the Council of his enrolment in the course referred to in Order 3 (a); (c)Within two weeks of completing the course referred to in Order 3 (a) of these orders provide documentary evidence to the Council of satisfactory completion of such course; (d)Within 12 months of this order or such further time as may be agreed with the Council complete at his own expense the distance education course "Medical Ethics" conducted by the Department of General Practice, Monash University, Victoria provided however if such a course is not available in 2014/2015 such other course as nominated by the Council; (e)Within 2 months of the date of this order, or such further time as may be agreed in writing with the Council provide evidence in writing to the Council of his enrolment in the course referred to in Order 3 (d) of these orders; (f)Within two weeks of completing the course referred to in Order 3(d) of these orders provide documentary evidence to the Council of satisfactory completion of such course; (g)Within 12 months of this order or such further time as may be agreed with the Council complete at his own expense the 2 day education course "Contemporary Treatment Approaches for Anxiety Disorders" conducted by the University of Sydney provided however if such a course is not available in 2014/2015 such other course as nominated by the Council; (h)Within 2 months of the date of this order, or such further time as may be agreed in writing with the Council provide evidence in writing to the Council of his enrolment in the course referred to in Order 3 (g) of these orders; (i)Within two weeks of completing the course referred to in Order 3(i) of these orders provide documentary evidence to the Council of satisfactory completion of such course. 4. Pursuant to s 149A (1) (c) the practitioner shall: (a)continue to see a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist; (b)authorise such treating psychiatrist of failure to attend for treatment, termination of treatment, or if, in the opinion of the psychiatrist, there is a significant change in the practitioner's health status; (c)comply with all treatment recommendations of the treating psychiatrist including the taking of any prescribed medication. 5. In the event that a registered medical practitioner prescribes or directs the practitioner to take a Schedule 4D or Schedule 8 drug and or a narcotic derivate, the practitioner shall within 7 days of receipt of such prescription and or direction notify in writing the Council of such prescription or direction. 6. The practitioner do all acts and things necessary to authorise the Council to provide copies of these reasons for decision and orders relevant to his health to his treating psychiatrist, and any other treating doctor. 7. In the event that the practitioner seeks to review these orders and/ or conditions under s 163A of the National Law and his principal place of residence is in NSW such application may be heard by the Council as the appropriate review body. If the practitioner's principal place of residence is other than in NSW s 125 to 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. 8. The practitioner shall pay 50 per cent of the costs of the Health Care Complaints Commission, save and except costs of 24 February 2014, as agreed and failing agreement as assessed pursuant to Division 11 Part 3.2 of the Legal Profession Act 2004 (NSW). IT IS NOTED THAT the costs ordered in order 8 of these orders are not to be set off against the order made on 24 February 2014 that the Health Care Complaints Commission pay the practitioner's costs thrown away on that day on an indemnity basis. ********** 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: 09 July 2014