Health Care Complaints Commission v Follent [2015] NSWCATOD 31

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Follent [2015] NSWCATOD 31 Hearing dates: 30 and 31 March, 2015 Decision date: 31 March 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ (Presiding member) Dr Saw-Hooi Toh (Professional member) Dr Emery Kertesz (Professional member) M Gleeson OAM (Lay member) Decision: Professional misconduct found proven, proceedings stood over for stage 2 hearing to 13 August, 2015, practice conditions and other interim orders made Catchwords: Medical practitioner admits particulars of complaint and guilty of professional misconduct- burden of proof in establishing probable permanent unfitness – practitioner bears burden of establishing matters in his favour- adjournment application granted- interim orders made Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: HCCC v Dr Della Bruna [2014] NSWCATOD 31 HCCC v Abou Hatoum & Anor [2004] NSWCA 30 HCCC v Litchfield [1997] NSWSC 297 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr J W Follent (Respondent) Representation: Counsel: H Bennett (Complainant) M Lynch (Respondent)

Solicitors: Health Care Complaints Commission (Complainant) Avant Mutual Group Ltd (Respondent) File Number(s): 1420211

0reasons for decision

Introduction 1. These proceedings are constituted by a Complaint in which the complainant, the Health Care Complaints Commission complains that the respondent Dr John William Follent has engaged in both unsatisfactory professional conduct and professional misconduct within the meaning of the Health Practitioner Regulation National Law (NSW) ("The National Law"). 2. Relevantly, Secs 139B(1)(a) and 139E of the National Law are as follows; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standardConduct 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. 139E Meaning of "professional misconduct" [NSW] 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 1. The Complaint as pressed in the proceedings is in the following terms; The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("the National Law") HEREBY COMPLAINS THAT John William Follent of 13/12 Minjungbai Drive, Tweed Heads South NSW 2486 ("the practitioner"), being a medical practitioner registered under the National Law COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or, 2. ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT ONE Patient A 1. The practitioner prescribed Lithium to Patient A during the period October 2009 to September 2011 in consultation with Patient A's psychiatrist and failed to regularly monitor Patient A's lithium levels, thyroid function and renal function. 2. The practitioner prescribed Patient A a Schedule 8 drug of addiction, namely MS Contin, (morphine) 15 mg, 20 tablets at a dose of 1- 2 nocte p.r.n. on 7 March 2008 and MS Contin 30 mg, 20 tablets on 14 March 2008 for shoulder pain. The prescription of MS Contin was inappropriate because: 1. The practitioner did not perform a physical examination, take a proper history of the presenting problems and/or order any tests such as x rays, 2. The second prescription was issued before the initial supply, if taken at the correct dose, had run out, and without recording any reasons for the further prescription. 1. The practitioner prescribed a Schedule 8 drug of addiction, namely oxycodone, to Patient A on the dates and in the quantities set out in the schedule attached and marked A; 1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; 2. in quantities and/or for a purpose that does 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; 3. when the practitioner knew, or ought to have known, that the drugs so prescribed were being or were likely to be abused. 1. The practitioner failed to conduct a proper physical examination of Patient A to determine the location and extent of his pain before prescribing oxycodone in December 2010. 2. The practitioner failed to conduct a physical examination during any subsequent consultation with Patient A to determine the location and extent of his pain before prescribing oxycodone. 3. Between June 2007 and August 2011 the practitioner prescribed Patient A a Schedule 4D prescribed restricted substance, namely testosterone, on the dates and in the quantities set out in the schedule attached and marked A; 1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; 2. in quantities and/or for a purpose, that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2008 and/or, 3. without proper and sufficient clinical indications. 1. In June 2007 or at any time thereafter, the practitioner failed to undertake and/or organise and/or record sufficient and appropriate investigations, including a physical examination and ordering of blood tests, for Patient A prior to prescribing testosterone. 2. In June 2007 or at any time thereafter, the practitioner failed to recommend or otherwise arrange any sufficient or appropriate follow-up or review of Patient A including the ordering of tests for the purposes of monitoring Patient A and identifying any complications arising from the treatment prescribed 3. Between January 2009 and December 2010 the practitioner prescribed Patient A a Schedule 4D prescribed restricted substance, namely the anabolic steroid Deca-Durabolin, on the dates and in the quantities set out in the schedule attached and marked A; 1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; 2. in quantities and/or for a purpose, that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2008 and/or, 3. without proper and sufficient clinical indications. 1. On January 2009 or at any time thereafter, the practitioner failed to undertake and/or organise and/or record sufficient and appropriate investigations, including a physical examination and the ordering of blood tests, for Patient A, prior to prescribing Deca- Durabolin to Patient A. 2. On January 2009 or at any time thereafter, the practitioner failed to recommend or otherwise arrange sufficient or appropriate follow-up or review of Patient A including the ordering of tests for the purposes of monitoring Patient A and identifying any complications arising from the treatment prescribed. 3. In September 2011 the practitioner consulted with Patient A on 7 September, 9 September, 14 September and 16 September. Patient A was unwell and his symptoms included shortness of breath, cough, sweatiness, possible Mallory Weiss vomiting and laryngitis. The practitioner: 1. Failed to take a proper history of the patient's presenting problems on each of those dates, 2. Failed to take the patient's pulse and/or blood pressure on each of those dates (except on 7 September when he recorded a pulse rate of 84), 3. Failed to take appropriate action after reviewing a chest x ray report on 16 September 2011 which noted the patient's heart was enlarged, including referral to a cardiac specialist or hospital, further examinations and diagnostic tests and/or advice to the patient about what to do if his symptoms got worse. Patient B 1. The practitioner prescribed Patient B a Schedule 8 drug of addiction, namely Ordine (morphine oral solution), on the dates and in the quantities set out in the schedule attached and marked B in circumstances where the practitioner had formed or ought reasonably to have formed the opinion that Patient B was a drug dependent person (within the meaning of section 27 of the Poisons & Therapeutic Goods Act 1966) and without a proper authority to prescribe under sections 28A and 29 of the PTG Act. 2. The practitioner prescribed Patient B a Schedule 8 drug of addiction, namely Ordine: 1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; 2. in quantities and/or for a purpose that does 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; 3. when the practitioner knew, or ought to have known, that the drugs so prescribed were being or were likely to be abused. 1. The practitioner inappropriately prescribed Patient B Ordine in circumstances where he knew or ought to have known the patient had a history of abusing analgesic medication and the clinical condition of the patient did not necessitate a change to an oral form of morphine. 2. The practitioner failed to conduct a proper physical examination of Patient B to determine the location and extent of his pain before prescribing Ordine in September 2009. 3. The practitioner failed to conduct a proper physical examination of Patient B during any subsequent consultation with Patient B. 4. The practitioner failed to make inquiries with Medicare's Prescription Shopping Program to ascertain if Patient B was obtaining supplies of morphine and or other drugs of addiction from other practitioners. 5. The practitioner inappropriately prescribed Patient B a prescribed restricted substance, namely Valium (diazepam), on the dates and in the quantities set out in the schedule attached and marked B for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008. 6. The practitioner inappropriately provided a prescription for Valium to Patient B on 18 February 2010 in circumstances where the practitioner was aware that Patient B intended to divert the medication to another person. Patient C 1. The practitioner inappropriately prescribed Patient C a Schedule 8 drug of addiction namely morphine, at a dosage of 90mg a day in September 2010 for back pain in circumstances where x rays performed on 13 September 2010 showed degenerative changes and a likely long standing wedge fracture, and where other non opoid treatments including paracetamol, non-steroidal anti- inflammatory agents had not been trialled. 2. The practitioner inappropriately prescribed Patient C morphine at a dosage of 60mg a day in December 2010 without recording the clinical indications for the prescription. 3. The practitioner failed to conduct a proper physical examination of Patient C to determine the location and extent of his pain before prescribing morphine in September and December 2010. 4. Between September 2010 and December 2010 the practitioner inappropriately prescribed Patient C a Schedule 8 drug of addiction namely, oxycodone, 1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; 2. without proper and sufficient clinical indications; 3. in quantities and/or for a purpose that does 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. 1. The practitioner failed to conduct a proper physical examination of Patient C to determine the location and extent of his pain before prescribing oxycodone in September 2010. 2. The practitioner failed to conduct a physical examination during any subsequent consultation with Patient C to determine the location and extent of his pain before prescribing oxycodone. 3. (a) The practitioner failed to consider and/or investigate whether Patient C suffered from osteoporosis, having regard to his advanced degenerative disc disease with possible wedge facture and/or, (b) The practitioner failed to provide to Patient C appropriate advice about osteoporosis. 1. The practitioner failed to consider and discuss with Patient C non opiate treatments for his chronic back pain. 2. The practitioner inappropriately prescribed Patient C a prescribed restricted substance, namely Alprazolam, at a dose of 6mg a day which is above the recommended maximum dose between May 2010 and December 2010 and without proper and sufficient clinical indications for the high dose. Patient D 1. On 3 May 2011 the practitioner; 1. failed to take an adequate history of Patient D's presenting problems including her reported fall and injury to her back; 2. failed to conduct a proper physical examination of Patient D including an examination of her back to identify the location and severity of her back pain and tenderness. 1. On 6 May 2011 the practitioner; 1. failed to take an adequate history of Patient D's presenting problems including her reported fall and injury to her back. 2. failed to conduct a proper physical examination of Patient D including an examination of her back to identify the location and severity of her back pain and tenderness. 1. On 6 May 2011 when reviewing the x ray films of Patient D's spine, the practitioner failed to detect the presence of a compression fracture of the L1. 2. The practitioner failed to review the x ray report sent to him on 9 May 2011 relating to the x ray of Patient D's spine or if he did review it, failed to follow up with the patient. 3. On 17 May 2011 the practitioner; 1. failed to take an adequate history of Patient D's presenting problems, 2. failed to conduct a proper physical examination of Patient D, 3. failed to take appropriate action including referral to an appropriate specialist or hospital, further examinations and diagnostic tests and/or advice to the patient and her carer about what to do if her symptoms got worse. 1. On 24 May 2011 the practitioner; 1. failed to take an adequate history of Patient D's presenting problems. 2. failed to conduct a proper physical examination of Patient D. Patient E 1. The practitioner failed to conduct a complete physical examination of Patient E in February 2011 to determine the location and extent of his pain before prescribing a Schedule 8 drug of addiction, namely oxycodone. 2. The practitioner failed to conduct a physical examination during any subsequent consultation with Patient E. 3. The practitioner failed to make inquiries with the Prescription Shopping Program to ascertain if the patient was obtaining supplies of oxycodone or other drugs of addiction from other practitioners before commencing or continuing to prescribe him oxycodone. 4. The practitioner prescribed Patient E a schedule 8 drug of addiction, namely oxycodone on the dates and quantities set out in the schedule attached and marked E; 1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; 2. in quantities or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulations 2008; 3. when the practitioner knew, or ought to have known, that the drugs so prescribed were being or were likely to be abused. 1. The practitioner continued to prescribe oxycodone on 3 occasions during May and June 2011 after receiving a letter from the Queensland Government Drugs of Dependence Unit dated 25 May 2011 informing him that Patient E was registered for opiods treatment in Queensland and he should not be prescribed any narcotics. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has contravened clause 7(1) and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 ("the HPR Regulation").