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. THE RESPONDENT'S GENERAL PRACTICE WORK 12The respondent now works and since October 1981 has worked as a general practitioner in the Umina Medical Centre. This practice is now owned by a corporation known as Healthscope, and the respondent is employed there pursuant to a contract for a period of five years, beginning when he signed the contract in March 2010. 13In the practice there are 12 general practitioners, four practice nurses, a practice manager and five reception staff. He sees a range of general practice patients of varying ages, though about two thirds of them are aged over 65 years. On most days, he believes, he sees between 30 and 40 patients at the surgery and during lunchtime calls. He works five days each week and every fifth Saturday for four hours. He has a number of patients in nursing homes in the district. 14Before investigations into the respondent's prescribing practices were initiated, he had been granted authority to prescribe and administer methadone. PRESCRIPTION PRACTICES 15The prescription practices of the respondent were brought to the attention of the Pharmaceutical Services Unit (PSU) on 3 February 2011 by a pharmacist in Umina. He was concerned about the large quantities of Oxycontin prescribed in the names of three people by the same doctor, that is, the respondent. Following a further telephone call to the PSU from a Umina pharmacist, an investigation was initiated. Following investigation, the investigator concluded that the respondent was in breach of s 28(2) and s 28(3) of the PTG Act. Those sections relate to the prescription of drugs of addiction for a period in excess of two months to a drug dependent person. 16On 13 April 2012, the respondent agreed to relinquish authority to prescribe Schedule 8 drugs. 17On 21 June 2014, on legal advice, the respondent voluntarily surrendered his authority in respect of Schedule 4D drugs. 18Between those two dates, other events occurred. On 18 September 2012, the Medical Council conducted an inquiry and imposed conditions upon the practice of the respondent. The first of those conditions was that he not possess, prescribe, supply, dispense or administer S8 drugs or hold an authority to do so. The second was to authorise the exchange of information between Medicare, PSU and the Medical Council in order to monitor compliance with the conditions. 19On 1 August 2013, the respondent undertook a course conducted by Avant Mutual Group entitled "Doctor Shoppers, the Law and Addiction Prescribing Drugs of Dependence" which was completed online. Also on 1 August, the respondent completed an online course, again with Avant Mutual Group, entitled "Managing Difficult Patients". 20A certificate dated 17 December 2013 from Monash University was admitted into evidence and established that the respondent had completed a single postgraduate subject entitled "Issues in General Practice Prescribing" conducted by Monash University. 21The original complaint in respect of the respondent was issued on 9 January 2014. 22On 11 June 2014, he commenced seeing Dr MaryAnne Friend, a psychiatrist and, as noted, on 12 June 2014 he surrendered his authority in respect of Schedule 4D drugs. PEER REVIEW 23The applicant engaged Dr Emery John Kertesz to provide a report. Dr Kertesz is a general practitioner peer reviewer experienced in providing Opiate Treatment Programs (OTPs). In his report of 1 June 2013, Dr Kertesz was highly critical of the pattern of the respondent's conduct in prescribing S8 and S4D drugs on demand, and of his failure to obtain the necessary permission to prescribe those drugs, whether patients were dependent or not. There were 25 patients who were the subject of complaints brought to the Tribunal. The pattern of the respondent's conduct in respect of those 25 patients was said by Dr Kertesz to fall below the standard expected of a practitioner of an equivalent level of training and experience. He was strongly critical of that conduct. In respect of each, we agree with the observations of Dr Kertesz. The respondent accepts and agrees with the criticisms of Dr Kertesz. 24Prescribing S8 drugs to patients A, F, K, L, M and Q when those patients were on OTPs at the time was regarded by Dr Kertesz as totally inappropriate, and in contravention of the PTG Act. It represented "poor and dangerous clinical management due to the quantities of the medications provided", with inadequate and superficial documentation of the prescribing. Similar criticism was made of the respondent's clinical management and documentation in the prescribing of S4D medications for patients K, L and M when compared with the professional standard required. The respondent accepted the summary made by Dr Kertesz that "[c]lose to 7,000 Oxycontin 40mg and 9,500 Oxycontin 80mg were prescribed for a period of 665 days for patient A" approximating to "1520mg of Oxycontin per day, i.e. the equivalent of 20 Oxycontin 80mg daily". 25Prescribing high doses of S8 medication, Oxycodone, for patients E, G, H, N, R, U and X with no clear treatment plan, and when the patients were known to be addicted to S8 drugs, was regarded as "totally inappropriate". Dr Kertesz considered that the respondent's "poor management processes" were evidenced by the lack of a management plan, his failure to contact other general practitioners or specialists, and lack of knowledge with respect to medications, their quantities and dosages. His documentation of S8 and S4D prescribing for these patients was "inadequate and superficial" when compared with the professional standard required. 26Prescribing S4D Benzodiazepines and/or S8 drugs to patient Z, who was previously on an OTP, and so was defined as an addicted person, was "inappropriate", particularly as the "haphazard" dosages prescribed "far exceeded normal recommended standards by the manufacturer or MIMS [a pharmaceutical prescribing reference guide]". Dr Kertesz considered that the clinical management appeared haphazard, appearing to be supply on demand. Documentation of care provided was inadequate and superficial for patient Z when compared with the professional standard required. 27Dr Kertesz considered that the respondent's prescribing S8 medications for patient V was completely inappropriate when the patient was known to be addicted to S8 drugs, and contrary to the PTG Act; his clinical management process was poor in the lack of a management plan, failure to contact other general practitioners or specialists, and evidenced a lack of knowledge with respect to medications, their quantities and dosages. The documentation of S8 and S4D prescribing was inadequate and superficial when compared with the professional standard required. 28The prescription of an injectable drug of addiction to patients I, J, O and W as nondrug dependent persons for more than two months without the prior written authority of the NSW Department of Health was regarded by Dr Kertesz as totally inappropriate, with poor clinical management, particularly as he ignored the requirement to obtain an approval, when he should have known an approval was required. Dr Kertesz described the respondent's clinical management of these patients as poor and misguided, and his documentation of S8 and S4D prescribing for them as inadequate and superficial when compared with the professional standard required. 29The respondent's treatment of patient P was considered to have "shortcomings". His prescribing of Murelax was not strongly criticized by Dr Kertesz, given that it was "only slightly higher than recommended levels"; however, it was strongly criticised in that it appeared to depart from prescription for therapeutic purposes in being provided on a "demand-supply basis". 30Dr Kertesz was strongly critical of the respondent's providing prescription of Oxycontin once and Oxynorm once for patient T, given that he was a known drug dependent person and the respondent did not have an authority to prescribe S8 medications for patient T, nor did he conduct appropriate diagnostic tests or refer patient T for specialist care, and "from the notes it is apparent that S8 medications were prescribed contravening New South Wales legislation simply to allay the onset of narcotic withdrawal in the case of a known addicted and doctor shopper patient". The excessive prescribing of Oxycontin for patient B for almost two years invited Dr Kertesz's strong criticism given it was contraindicated as patient B was a known drug dependent person, and there was no evidence of an authority to do so. He did not conduct appropriate diagnostic tests and he failed to refer patient B to drug and alcohol specialists or communicate with his previous OTP prescribers. 31The prescribing of Oxycontin for patient C, and failure to recognise her as an addicted or possibly addicted person, was strongly criticised by Dr Kertesz, given her association with other patients for whom the respondent was prescribing S8 medications, even though the dosages prescribed to her were within therapeutic guidelines. 32The respondent's prescribing of Oxycontin and Valium for patient D was strongly criticised. It was described as "totally haphazard with four different strengths being prescribed at odd times for no apparent reason", and, given that the patient was a known doctor shopper there was no evidence the respondent had requested an authority to prescribe the S8 medications. The respondent did not conduct appropriate diagnostic tests, nor did he seek specialist assistance. 33The clinical management of patient Y, for whom narcotic medications were prescribed, fell below the standard expected of a practitioner of an equivalent level of training and experience. There was no evidence that other analgesics were trialed, nor of referral to a pain specialist. The prescribing for patient Y of potentially harmful combinations of medications invited Dr Kertesz's strong criticism as did the respondent's failure to obtain an authority for the continuing use of Jurnista after a period of two months. 34In his oral evidence, the respondent accepted the criticisms made by Dr Kertesz and said he had no disagreement with them. 35The misconduct of the respondent was serious and warrants the most trenchant criticism. THE RESPONDENT'S CONDUCT AND INSIGHT 36In his written statement (AX7) the respondent said that he had spent a great deal of time reflecting on his practice and how he came to prescribe drugs in the inappropriate way that he did. He said a number of factors contributed to his "misguided prescribing practices". Included among them were his personality, his failure to exercise appropriate clinical judgment, a lack of adequate knowledge of the relevant legislation governing prescribing S4D and S8 drugs and record keeping and a failure to keep up with the current literature with respect to treating patients with chronic pain and/or drug and alcohol problems. He said he was a normally nonassertive person who abhorred confrontation. He found it difficult dealing with a number of his patients for whom he prescribed S8 drugs. This cohort of patients often led chaotic lives and could be demanding and manipulative. At times he felt threatened by some patients even though they did not actually make any threat to harm him. He felt it easier to give in to their demands rather than exercise proper clinical judgment. The respondent now believes that he was in denial that he could be harming these patients rather than helping them. 37He now is ashamed and disappointed in himself for letting his prescribing get out of hand to the point where the welfare of some of his patients was being jeopardised by his conduct. 38The statement of the respondent indicates that he has taken a number of steps in an effort to help him gain insight into his past poor prescribing practices and to improve and update his knowledge about the issues arising in the complaint. He refers to the Monash University Course "Issues in General Practice Prescribing" and the two Avant sessions in respect of S8 drugs and dealing with managing difficult patients. He has consulted Ms Jo Montgomery of Avant's Risk Advisory Service and discussed with her, proper record keeping and followup of investigation results. 39He has found his consultations with Dr MaryAnne Friend of assistance in developing a deeper understanding of his own personality and how it seems to have influenced his past inappropriate prescribing. 40Dr Friend provided a report which is in evidence as AX9 and we received evidence from her by telephone link. Her report bears date 27 October 2014. In that report, Dr Friend expressed the view that the respondent does not suffer from a diagnosable psychiatric condition. He does, however, describe a consistent pattern of social anxiety and some features of an avoidant personality. His interpersonal style she described as unassertive and he described his self-esteem as low. Dr Friend recorded that the respondent recognises his pattern of irrational thinking. Her treatment of the respondent involved helping him to understand his personality style and vulnerabilities, to recognise his habitual defensive strategies and to identify the flaws in his thinking that resulted in his engaging in inappropriate prescribing. Though the respondent recognised in hindsight that he was behaving unassertively and made poor decisions, it was necessary, in order to reduce the likelihood of this conduct occurring again, that he recognise triggers when he is behaving in an unassertive manner. She thought he then needed to master and be able appropriately to utilise strategies to address the identified vulnerabilities and deficits. She was of the view that the treatment process is ongoing and not complete. 41Dr Friend also thought the respondent's workload had been excessive and that this played a role in his conduct. She discussed with him his workload and ways to reduce it in order to allow him more time for each patient. The respondent informed her that he could not reduce his hours although he could consider changing his appointment schedule to 20 minutes rather than the 15 minutes she had been using. 42Dr Friend was of the view that the respondent did have a level of insight into his knowledge and skill base, noting particularly that he had referred some patients on before the intervention of the PSU. She seemed favourably impressed by the fact that he had enrolled in and completed the several training courses to which reference has already been made. Dr Friend was encouraged by the respondent's insight and honesty. She was of the view that further conduct of a similar nature would be highly unlikely. In oral evidence, Dr Friend agreed that an appropriate condition for the respondent's continuing to practise would include that there be a limit to the number of patients he sees in a week and in a day. She thought he should be permitted to continue to practise subject to conditions. We have found the evidence of Dr Friend to be helpful. 43We take in to account the contents of a number of character references provided by professional colleagues of the respondent. Each speaks highly of him and of his care for his patients. Nevertheless, it seems had his misconduct not been detected it would have continued. This is despite the respondent's having had the benefit of training in OTPs while a general practitioner, and having had early training and experience as an anaesthetic registrar, such that lack of knowledge could not be accepted as the cause of his departures from acceptable practice. 44The Tribunal has considered the seriousness of the admitted departures from accepted professional standards, which would be strongly criticised by the respondent's peers, and are admitted by him as misconduct. In the result, the applicant does not seek the suspension or deregistration of the respondent and there has been a significant degree of agreement between counsel for the applicant and counsel for the respondent concerning the orders that the Tribunal should make. The Tribunal accepts that some steps to safeguard the public have already been undertaken by the respondent, in relinquishing prescribing rights, completing relevant education modules, and beginning a process of psychiatric counselling. In view of the seriousness of the conduct of the respondent, we consider it appropriate to order that he be reprimanded and he be permitted to continue to practice but subject to conditions. Those conditions are influenced by the evidence and by counsels' submissions. ORDERS 45The orders we make are these: 1. The respondent is reprimanded. 2. The respondent may continue to practise but subject to the following conditions: (1)Not to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) or any other narcotic analgesic. (2)Not to possess, prescribe, supply, dispense or administer Schedule 4 Appendix D drugs as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW). (3)To consult with the New South Wales Medical Council (the Council) before applying to the Pharmaceutical Services Unit of the New South Wales Ministry for Health for variation of his authority to prescribe Schedule 8 drugs or any other narcotic analgesic and Schedule 4D drugs, such application to be in accordance with the Council's Protocol. (4)To obtain approval from the Council prior to changing the nature or place of his practice. (5)If in general practice, to notify the owner/s and principal of the practice and any other practitioner (including future practitioners who may be working onsite with the respondent) of these conditions and to forward to the Council within seven days a copy of these conditions signed by each of those practitioners. (6)Not to treat more than 130 patients in any one week and an average of no more than 30 patients in any one day in any setting. (7)To authorise and consent to any exchange of information between the Council, Medicare Australia and Pharmaceutical Services Unit for the purpose of monitoring compliance with these conditions. (8)To nominate to the Council within 28 days of the date of this decision, a mentor to be approved by it. The mentor is to be a general practitioner who has agreed to act as the respondent's mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Council's Guidelines for Mentors (policy CPH 10.1). The Council is to provide a copy of the Guidelines to the mentor together with a copy of this decision. (9)To authorise the mentor to report in an approved format to the Council every three months concerning the fact of contact and to inform the Council if there is any concern about the respondent's professional conduct. (10)To authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. (11)To meet with the mentor for an initial period of two years from the date of the first consultation, and thereafter for such period as the Council may determine. (12)In the event that the approved mentor is no longer willing or able to continue as a mentor, the respondent is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. (13)The respondent is responsible for any costs associated with the mentoring process. (14)The respondent is to include in his discussions with the mentor, his personal and professional development as a registered medical practitioner and medical practice issues as they arise and the issues highlighted by this decision and any personal and medical practice issues that may arise. (15)To submit to an audit at his premises of a random selection of his medical records by a person or persons nominated by the Council to assess his compliance with the relevant provisions of the HPR (NSW) Regulation (Part 4 and Schedule 2) and the RACGP's Standards for General Practices (3rd edition), in particular, Standard 1.7 "content of patient health records" with particular attention to his assessment of patients' treatment plans and prescribing of medication. (16)To submit to such an audit within six months of the date of this decision and subsequently at 12 monthly intervals, or as required by the Council. The respondent is to authorise the auditor to provide a report to the Council on the auditor's findings. The respondent is to meet all costs associated with the audit and reports. (17)To attend a psychiatrist or clinical psychologist (the therapist) approved by the Medical Council for the purpose of counselling sessions for a minimum period of 12 months from the date of the first consultation. All expenses associated with the counselling are to be met by the respondent. To facilitate this condition, the respondent is to: (a)nominate a therapist for Council approval within 28 days of this decision; (b)meet the therapist within one month of being advised by the Council that his nominated therapist has been approved and thereafter to meet at a frequency determined by the therapist; (c)provide the therapist with a copy of this decision; (d)authorise the therapist to notify the Council immediately if there is any concern or issue in relation to the practitioner's compliance with any condition. (18)Pursuant to s 163(1)(a) of the National Law, the Tribunal orders that the Medical Council of New South Wales is the appropriate review body for review of conditions. In the event that the respondent resides other than in New South Wales the Tribunal orders ss 125, 126 and 127 of the National Law are to apply so that a review of these conditions might be considered by the Medical Board of Australia. (19)The respondent is to pay the applicant's costs of these proceedings. ********** 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 Amendments 23 December 2014 - typographical error in non publication order Amended paragraphs: Coversheet 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: 23 December 2014