Health Care Complaints Commission v Ivits [2014] NSWCATOD 148

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ivits [2014] NSWCATOD 148 Hearing dates: 13, 14 November 2014 Decision date: 10 December 2014 Jurisdiction: Occupational Division Before: Acting Judge J L O'Meally, Principal Member Dr V Sutton, Medical Member Assoc Prof A Demirkol, Medical Member Dr C Berglund, Community Member Decision: 1. The respondent is reprimanded. 2. The respondent may continue to practise but subject to conditions. Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Anthony Ivits (Respondent) Representation: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 1420046 Publication restriction: Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name, address or any evidence or information which might tend to or lead to the identification of the names of patients identified in these proceedings is prohibited.

reasons for decision

THE COMPLAINT 1Dr Anthony John Ivits (the respondent) was born in January 1952. In 1977 he graduated MB BS from the University of Sydney and on 17 December 1977 he obtained medical registration from the Medical Board of New South Wales. 2Proceedings have been brought against him by the Health Care Complaints Commission (the applicant) alleging he has been guilty of unsatisfactory professional conduct within the meaning of s 139B of the Health Practitioner Regulation National Law (NSW) 2009 (the National Law) and guilty of professional misconduct within the meaning of section 139E of the National Law. 3In written admissions, in a signed statement admitted into evidence and in oral evidence as well as through his counsel, the respondent has conceded he is guilty of unsatisfactory professional conduct and guilty of professional misconduct. Particulars of the alleged misconduct are set out in the complaint. They are admitted without qualification. 4The first complaint is one of unsatisfactory professional conduct. It is alleged by the applicant and conceded by the respondent that he engaged in conduct that demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It is further alleged that he contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 (the HPR (NSW) Regulation). It is also alleged and admitted that he engaged in improper conduct relating to the practice of his profession. 5The second complaint of professional misconduct repeats and relies upon the particulars provided in respect of the first complaint. Substantially, the conduct complained of extended from 1 November 2010 to 16 April 2012, with some conduct affecting one patient from 2007. 6It is unnecessary to recite verbatim the terms of the complaint, but it is sufficient to summarise the matters alleged and acknowledged. In respect of the first complaint, the particulars are that the respondent on the dates and in the manner described in the schedules of the complaint: (a)prescribed Schedule 8 drugs of addiction to nominated drug dependent persons when he ought to have formed, or ought reasonably to have formed the opinion that each was a drug dependent person within the meaning of s 27 of the Poisons and Therapeutic Goods Act 1966 (the PTG Act) without obtaining proper authority under ss 28, 28A or 29 of the PTG Act; (b)prescribed drugs of addiction within the meaning of s 27 of the PTG Act to nominated patients inappropriately and/or in a quantity or for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 (the PTG Reg 2008) outside therapeutic guidelines; (c)prescribed Schedule 4D restricted or prescribed restricted substances (within the meaning of s4 of the PTG Act) to nominated patients inappropriately and/or in a quantity or for a purpose that did not comply with the recognised therapeutic standard; (d)prescribed Schedule 8 drugs of addiction and/or Schedule 4 restricted substances and/or Schedule 4D restricted substances concurrently, and in inappropriate combinations, to nominated patients, without proper and sufficient consideration for the potential interaction of these drugs; (e)issued prescriptions for drugs of addiction for nominated patients without complying with the requirements of clause 80(1)(a) of the PTG Reg 2008 in that prescriptions were pre and post dated; (f)issued prescriptions for prescribed restricted substances for nominated patients without complying with the requirements of clause 35(1)(a) of the PTG Reg 2008 in that prescriptions were pre and post dated; (g)failed to seek specialist assistance or advice from other health professionals or services including pain clinics, addiction clinics, drug and alcohol units, specialist medical practitioners, other general practitioners who were Opiate Treatment Program prescribers, pharmacists for a medication review and/or psychologists prior to and whilst prescribing Schedule 8 drugs of addiction, and/or Schedule 4 and/or Schedule 4D restricted substances to nominated patients; and (h)failed to conduct appropriate diagnostic tests including haematology, biochemistry, radiology and/or Urinary Drug Screening, prior to and whilst prescribing Schedule 8 and/or Schedule 4D restricted substances to nominated patients. 7The second particular of the first complaint relates to the respondent's failure to keep proper and adequate records of treatment as required by Schedule 2 of the HPR (NSW) Regulation and/or clause 5 and Schedule 2 of the Medical Practice Regulation 2003 and/or clause 4 and Schedule 1 of the Medical Practice Regulation 2008 for nominated patients in that he failed to record sufficient information relevant to his diagnosis and treatment of the patients, the patients' medical history, the results of physical examinations performed, a plan of treatment for the patients, and/or advice given to the patients. 8In relation to prescriptions in general, it is alleged and admitted that the respondent failed to record the particulars of all medications prescribed to nominated patients A to K, L to R and U to Z, as required by clause 7 and Schedule 2, clause 1 (2)(d) of the HPR (NSW) Regulation, and/or clause 5 and Schedule 2, clause (1)(d) of the Medical Practice Regulation 2003 and/or clause 4 and Schedule 1, clause (2)(d) of the Medical Practice Regulation 2008. 9As earlier noted, the second complaint alleges the respondent has been guilty of professional misconduct in that he has engaged in conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and has done so on a number of occasions. This complaint relies on the particulars recited for the first complaint. They are admitted without qualification. 10We are satisfied that the admissions are justified by the evidence and comfortably satisfied that the matters recited in the particulars are established to the required standard. Thus we are satisfied that the respondent has been guilty of unsatisfactory professional conduct and of professional misconduct. 11There is no doubt that the respondent's conduct demonstrated a departure from accepted standards of the medical profession and would incur strong reprobation of professional colleagues of good repute and competence. His conduct fell well below the minimum standard required of medical practitioners.