Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mobilia [2015] NSWCATOD 52 Hearing dates: 20 April 2015 Decision date: 03 June 2015 Jurisdiction: Occupational Division Before: W Haylen, ADCJ Dr V Sutton, Professional Member Dr M Higgins, Professional Member Dr K Sundquist, Lay Member Decision: 1. Respondent's conduct found to constitute unprofessional misconduct. 2. Respondent reprimanded and to practice subject to conditions. 3. Respondent to pay the costs of the Applicant. Catchwords: Application alleging unsatisfactory professional conduct and professional misconduct – prescription of Schedule 4D and 8 drugs of addiction without obtaining authority – failure to conduct appropriate assessment and examination of patients – failure to keep proper medical records Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act Poisons and Therapeutic Goods Regulation Medical Practice Regulation 2003,2008 Health Practitioner Regulation (NSW)Regulation 2010 Cases Cited: NSW Bar Association v Cummins [2001] NSWCA 284 HCCC v Do (2014) NSWCA 307 Clyne v NSW Bar Association (1960) 104 CLR 186 HCCC v Litchfield [1997] NSWSC 297;(1997) 41 NSWLR 630 Prothonotary of NSW Supreme Court v Ritchard NSWCA 415 of 1986 (unreported 31/7/87) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr G Mobilia (Respondent) Representation: Counsel: CP O'Donnell (Applicant) M Lynch (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 1420318 Publication restriction: The publication of the names of patients set out the complaint filed by the HCCC is prohibited pursuant to s65 of the Civil and Administrative Tribunal Act. Decision under appeal Jurisdiction: Occupational Division Citation: [2015] NSWCATOD Before: W Haylen,ADCJDr V Sutto Profes File Number(s): 1420318 reasons for decision 1. Dr Glen Mobilia has been registered as a Medical Practitioner (General) under the Health Practitioner Regulation National Law (NSW) since November 2010. 2. In May 2001 he commenced practice as a sole general practitioner located in Jindera, a township some thirty minutes drive from Albury. When he commenced that practice there had been no fulltime GP working in Jindera. 3. Following interviews with Dr Mobilia by officials from the Pharmaceuticals Service Unit of the NSW Ministry of Health (the PSU) in November 2012 concerning over –prescribing of Scheduled drugs of addiction, Dr Mobilia was referred to the Medical Council of NSW ('the Medical Council') for consideration of the imposition of conditions on his registration including conditions limiting his prescribing and ancillary rights with respect to Schedule 8 and Schedule 4D drugs. Following an enquiry conducted by the Medical Council under s 150 of the National Law it was determined to confirm conditions imposed on his rights of practise on 13 June 2013 prohibiting him from possessing, prescribing, supplying, dispensing or administering any Schedule 8 or Schedule 4D Drugs. The Medical Council referred the matter to the Health Care Complaints Commission (HCCC) for investigation under section 150D of the National Law. 4. In October 2014 the HCCC filed an application in the Tribunal registry alleging that Dr Mobilia was guilty of unsatisfactory professional conduction under section 139B of the National Law arising from his conduct in prescribing drugs of addiction, the alleged contravention of conditions to which his registration was subject (namely prescribing a Schedule 8 drug of addiction contrary to a condition prohibiting that occurring), and failing to keep proper medical records in relation to a number of patients by failing to record information known to him relevant to his diagnosis or treatment. The fourth complaint alleged professional misconduct arising from the cumulative seriousness of complaints 1, 2 and 3. 5. At the commencement of the proceedings in this Tribunal the HCCC announced that it wished to proceed on an amended application. That course was not objected to by Dr Mobilia. Under the amended application the second complaint was deleted from the original application and various deletions were made in the particulars regarding some of the remaining grounds. 1. Under the amended application complaint 1 alleged that Dr Mobilia was guilty of unsatisfactory professional conduct in that he had: 1. engaged in conduct that demonstrates 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. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Complaint 1 thereafter particularised numerous failures by Dr Mobilia in his prescription of drugs for sixteen named patients. Counsel for the HCCC described the general nature of the complaints concerning these sixteen patients regarded the prescription of drugs where Dr Mobilia: 1. did not obtain authorities to prescribe some of the drugs he prescribed to those patients as required under the Poisons Therapeutic Goods Act (PTG Act), in particular where the patients were on an opioid treatment program (OTP) so were drug dependent as defined under s 28 (3) of the PTG: 2. prescribed other drugs such as methadone without an authority under Section 28 (2) of the PTG Act: 3. prescribed the drugs without a proper assessment or without exercising a proper medical judgment, without trialling other medications first, without collecting sufficient information from the patient's previous prescribers, without making proper enquiries about their OTP past, and without making any long term plan for the patient's condition; 4. prescribed the drugs without seeking specialist input or advice or without referral to a specialist for a medical conditions presented; or in excess of quantities or for a purpose that did not accord with therapeutic standards. The drugs to which the first complaint related were Methadone, Diazepam, Oxycodone, Fentanyl, Buprenorphine and Morphine. 1. In relation to the first complaint it was submitted there were some similarities in the pattern of prescribing for some or all of the patients including prescribing the drugs; without first conducting an appropriate assessment; contrary to therapeutic guidelines; when Dr Mobilia knew or should have known the patient was a drug dependent person; without managing the patient in accordance with an appropriate clinical plan; without the proper authority of the Director-General of the Department (or Ministry) of Health. 2. Complaint 2, alleging a contravention of conditions placed on Dr Mobilia's registration, was withdrawn. 3. Complaint 3 alleged contravention of various clauses of the Medical Practice Regulation 2003, the Medical Practice Regulation 2008 and provisions of the Health Practitioner Regulation (NSW) Regulation 2010. 4. It was alleged that Dr Mobilia failed to keep proper medical records for some fifteen patients in that he failed to record information known to him, relevant to his diagnosis and/or treatment including: 1. the patients' medical history and the patients' then current health problems; 2. the results of the physical examinations of the patients; 3. particulars of clinical opinions reached by Dr Mobilia; 4. a plan of treatments for the patients, including pain management plans; 5. diagnosis or diagnoses; 6. a record of the information or advice given to the patients in relation to the medical treatments he proposed to give or recommend; 7. a level of detail appropriate to the patients' case and / or the medical practice concerned. This complaint related to records of fifteen patients who had consulted Dr Mobilia. 1. The amended fourth complaint relied upon the combined particulars of the first and third complaints both individually and cumulatively. 2. In mid March 2015 Dr Mobilia filed a statement in the Tribunal admitting the majority of the first, third and fourth complaints. In substance he admitted that he engaged in unsatisfactory professional conduct and professional misconduct. 3. On the first day of the hearing Counsel for Dr Mobilia announced that complaints one and three as particularised in the amended application were admitted in their entirety and further that Dr Mobilia accepted, as particularised in complaint four, that his conduct particularised in complaints one and three amounted to professional misconduct. Having regard to the extensive material filed, the Tribunal was satisfied that Dr Mobilia's admissions were properly made and proceeded to hear evidence and submissions relating to the appropriate protective orders that might be made in relation to the particularised conduct. 1. Dr Mobilia provided a written statement to the Tribunal and also gave oral evidence. He was crossed examined at some length. He spoke of his admission to practice as a barrister and solicitor in Victoria in 1982 and between 1982 and 1990 being in a franchise business. He remained on the roll as a legal practitioner but provided very little legal service. Between 1985 and 1992 he was a part time lecturer and tutor in Company Law and Real Estate Law at Albury TAFE. In 1998 he graduated MB BS from Flinders University and then completed his internship in South Australia. He was first registered as a medical practitioner in NSW in January 1999. Between 1999 and 2000 he was employed as a resident medical officer at 4 hospitals and between January 2000 and 2001 he was engaged as a psychiatry registrar at Wangaratta hospital. In the same period he practised as a general practitioner on a part time basis at the Melrose Clinic in Wodonga. In 2000 he became a partner at the Melrose Clinic. In 2001 he also worked as an orthopaedic registrar at Albury and Wodonga Hospital. 1. In May 2001 he relocated to Jindera and commenced practising as a solo general practitioner on a part time basis. In late 2001 he began to practise on a full time basis at the Jindera Medical Clinic. This was assisted by a incentive offered by the Federal Government to attract general practitioners to rural locations and he was encouraged to relocate by the local council. At the time of commencing practise at Jindera there was no full time general practitioner in the town. 2. Dr Mobilia joined with the local Council to seek funding from the Government to assist in establishing a nursing home in the town. In July 2003 Jindera Nursing Home, a 10 bed home, was officially opened. As part of Government funding arrangements he was required to relocate his general practice to the Nursing Home and agreed to continue to provide a permanent medical service and to care for nursing home patients. In 2013 the Council sold the nursing home and Dr Mobilia relocated within the township. 3. The Jindera Medical Clinic was described as offering a full range of rural general medical services including a women's clinic, a diabetes clinic and a weight management program. The Clinic employed a practice manager, an enrolled nurse and a part time receptionist. A pathology service was provided two mornings a week operating out of the Clinics. Two clinics per month were conducted by a child and family health nurse and local community nurses also used the clinic premises as required. 4. Dr Morbilia gave details of conducting home visits as required and attending upon patients residing in nursing homes. The Clinic bulk billed all patients except for those whose treatment fell under Workcover or other insurance related claims. The Clinic was fully computerised and used the Medical Director Practice software. In oral evidence Dr Mobilia said that he had approximately three to four thousand patients. During the period covered by the allegations he said he was consulting approximately 40 to 50 patients a day but now was seeing 30 to 40 patients a day. 1. In March 2011 one of his colleagues, Dr Andrews, died and this led to a dramatic increase in Dr Mobilia's patient load. Dr Andrews had practised in Occupational Health Medicine and specialised in work related injuries and motor vehicle accident claims. With this large influx of patients Dr Mobilia said that his overall prescribing of analgesic medication increased. Some of Dr Andrews' patients were not able to be accepted and many were referred to the emergency department of the hospital or other practitioners. 1. In relation to the first complaint Dr Mobilia stated that he was unaware of the requirement to obtain Authorities when prescribing Schedule 8 medications in certain specified situations. He was also unaware of the requirement to obtain authorities for those patients that be considered 'drug dependent'. He was aware of the need to obtain a PBS Authority to prescribe certain restricted medications. He understood that ignorance was not an excuse for prescribing without an authority but stated that he was simply providing an explanation for his conduct. 2. When these provisions were brought to his attention by the PSU in November 2012 Dr Mobilia promptly applied for authorities for patients for whom he was prescribing and where an Authority was required. In all cases he received such Authorities. 3. Following that contact with the PSU and from November 2012 onwards it became Dr Mobilia's invariable practice with new patients to firstly advise the patients' other treating professionals of their attendance upon him and secondly to consider whether the patient might meet the criteria for a drug dependent person and if so to then require an Authority. He had taken advice and had reviewed the Ministry of Health's website dealing with prescribing a Schedule 8 opioid or benzodiazepine and was now aware that an Authority from the Ministry was required to prescribe or supply a drug of addiction for a dependent person. He also understood that an Authority was required to prescribe or supply a drug of addiction for a non – drug dependent person who is prescribed or supplied with a number of specified drugs of addiction continuously for more than two months. 4. Even with the benefit of hindsight Dr Mobilia could not explain why he was unaware of the requirements of the PTG Act and specifically the requirements regarding prescribing Schedule 8 medications. 5. He attended many meetings and workshops about prescribing issues and those provisions were never discussed. He accepted that he ought to have made more careful enquiries regarding prescribing obligations and accepted that he could have taken advice about those matters from his Medical Defence Organisation but that did not occur to him at that time. 6. In cross examination Dr Mobilia accepted that in at least two pieces of correspondence occurring during the time covered by the complaints, reference was made to prescribing schedule drugs and the possibility of having to seek approval under local statutory provisions. He had no clear recollection of those comments but thought that they were general observations that did not require him to take any action and, indeed, he was unaware of any obligation to seek authorities in such circumstances. 7. In relation to the complaint that he failed to make proper enquiries regarding the Opioid Treatment Program or drug dependent persons, Dr Mobilia said he would routinely make a general observation of the patient and whoever accompanied them into the waiting room. He would observe their demeanour, presentation and appearance. All new patients to the practice were required to complete a patient questionnaire that, among other matters, required patients to indicate whether they had been on or were currently on the drug treatment program. He would than assess the patient using a multimodal biopsychosocial model. That approach included taking a patient's causative history, personal history, ruling out red flags (such as infection, fracture and trauma), determining psychological factors, co-morbidities, conducting a socioeconomic assessment, assessing addiction or problematic use and assessing impact pain functional status. It was also his usual practice to conduct a physical examination of the patient to determine any physical evidence of drug use, although he accepted that he did not always thoroughly document the examinations. There were occasions where he refused to treat new patients when they were clearly drug seeking or if they would not provide permission to speak to previous practitioners. 8. In relation to the failure to seek or follow specialist advice, Dr Mobilia said that he frequently discussed patient management with specialists. That included psychiatrists, surgeons and specialist pain physicians to whom the patient had been or was to be referred. He frequently spoke with a pain specialist practising on a part-time basis in Albury, Dr Brett Todhunter. He regularly referred patients to Dr Todhunter for advice and on many occasions spoke to Dr Todhunter about patients to whom he was prescribing either Schedule 4D or Schedule 8 medications as to the most appropriate way to manage the symptoms. He observed that it was unfortunate that he did not often document those discussions. He accepted that he ought to have been more thorough and that he ought to have implemented a formal system whereby his patients were managed by both Dr Todhunter and himself and the records maintained to more clearly reflect that approach. 1. In relation to complaint 3 Dr Mobilia considered that his clinical records were brief and would not satisfy the requirements of the regulations that were in operation. He accepted that his medical records should have been substantially more detailed and ought to have indicated in some degree of detail precisely what had occurred on any particular date including the specific presenting complaint, symptoms, examination results and his thoughts on those matters. In explanation he said that he used to spend his time in consultation with patients either discussing matters with them or examining them or both. It was only towards the end of the consultation he would seek to 'scramble together a brief record'. He expressed his deep regret for the brevity of his records and noted the fact that they did not assist him in relation to these complaints because they did not demonstrate the variety of actions he had taken. 2. Following the receipt of these complaints, Dr Mobilia said that he sought to make a number of changes to the way in which he practised, and specifically in relation to way in which he made and kept medical records. He had sought advice from his Medical Defence Organisation and that organisation had arranged for a risk manager to conduct a practice visit and to provide a plan for issues requiring attention. He had commenced to improve his clinical record keeping by making them more comprehensive. He now commenced making his notes at the beginning of and throughout the consultation and was of the view that his medical records would now satisfy any requirement of the regulations. 3. Dr Mobilia had taken note of the peer reviewer, Dr Stephen Howle, who had provided a report of the HCCC for the purposes of this matter before the Tribunal. He accepted the criticisms but noted that since the issues had been raised earlier by the PSU and subsequently by the Medical Council he had made concerted efforts to significantly change the way in which he practised medicine. Not only did he have a risk assessment conducted by his Medical Defence Organisation but that assessment assisted him to understand the risks associated with his practice and helped him identify and implement strategies to overcome them. He had since been in contact with the risk manager and had met with the assessor after the practice visit to consider the risk assessment report, quality improvements and risk minimisation for the future. In light of the risk assessment process he now fully realised that there were several areas requiring improvement in his practice particularly in systems and processes. He said that he was committed to ensuring those were in operation so that they would align with recommended guidelines and standards. 4. Dr Mobilia also enrolled in the course 'Prescribing Issues in General Practice' conducted by Monash University. Since his initial contact with the PSU Dr Mobilia said he had been reflecting on the issues arising from his prescribing and was keen to gain further insight into areas studied in the course. He had also enrolled in a number of courses aimed at appropriate prescribing of Schedule 4D and Schedule 8 medications. In relation to ongoing CME, he pointed out that he was on the Board of the Border Division of General Practice. He attended virtually every meeting of that Division and also attended weekend meetings or workshops conducted in Sydney or Melbourne. He also presented at local meetings when requested to do so. 1. In June 2013 following a section 150 inquiry conducted by the Medical Council of NSW, Dr Mobilia's registration became subject to a condition that he not possess, prescribe, supply, dispense or administer any Schedule 4D or Schedule 8 medication. He noted that the vast majority of his patients nevertheless continued to consult with him and that his patient base in fact expanded following the imposition of that restriction. For the future Dr Mobilia stated that he had 'absolutely' no desire to prescribe Schedule 4D or Schedule 8 medications in the future. 2. Having regard to the matters complained of, Dr Mobilia stated that he accepted that his prescribing approach was inappropriate, unwise and doubtlessly put the public at risk. For that he was deeply remorseful and upset. He stated that he would never deliberately put any patient at risk and to the contrary he genuinely believed he was treating each of those patients appropriately and with compassion. He was of the view that he was going out of his way to help them manage what he diagnosed as serious chronic conditions. It troubled him tremendously to think he might have potentially harmed patients with his prescribing approach and worse still that he may have contributed to certain of these medications being used by persons to whom they were not prescribed. He wished he had been more diligent with his documentation and referral of these patients to appropriate specialists to gain assistance. 3. Dr Mobilia said he was deeply committed to the Jindera community and therefore was committed to making his practice a success and achieving better outcomes for his patients. The continued support of his patients had invigorated his desire to make the significant changes to the manner in which he proposed to practice in the future. He was truly remorseful for his conduct and assured the Tribunal that such behaviour would not occur again. From the time of his involvement with the PSU investigations and matters that have flowed from it he now realised they were 'a wake up call' for him for the future and that he would make every possible effort not to jeopardise his patients or his career again. 4. Dr Stephen Howle was retained by the HCCC to provide an independent expert report in relation to the complaint particularised by the HCCC against Dr Mobilia. Dr Howle had been provided with the complaint from the PSU in 2013, records relating to sixteen patients and a variety of other documents including regulations, guidelines and criteria relevant to the complaint. Dr Howle was asked to provide an opinion in relation to a number of medications, therapeutic standards, dosage levels and risks associated with them. 5. In relation to individual patient records Dr Howle was asked to express an opinion on the variety of matters raised including whether there had been an appropriate assessment conducted, the appropriateness of concurrent prescribing of scheduled drugs, whether specialist assistance should have been sought, whether drugs were prescribed for therapeutic purposes or in accordance with recognised therapeutic standards and whether or not authorities should have been sought by Dr Morbilia. 6. Although, in a relatively small number of cases, Dr Howle found aspects of matters particularised as not made out or some identified conduct of Dr Mobilia as been without fault, the majority of matters particularised in the complaints resulted in Dr Howle describing the conduct as variously 'significantly below the expected standard and invites strong criticism', 'below the expected standard and invites some criticism', 'below the expected standard and invites mild criticism', 'below the expected standard and invites moderate criticism'. 7. In relation to the amended complaints as particularised, Dr Mobilia accepted the assessment made by Dr Howle. Dr Howle was not required for cross examination. 8. In his case Dr Mobilia tendered a report from Dr Susette Sowden, a clinical and forensic psychologist. Dr Mobilia had self-referred in order to undergo psychological assessment and treatment in light of the complaints against him that were brought to the Tribunal. Dr Mobilia attended the practice on five occasions between February and March 2015 and expressed his willingness to continue psychological review or treatment by attending ongoing psychological sessions. 9. Dr Sowden observed that Dr Mobilia had not adopted either blaming or paranoid ideation in relation to the alleged misconduct, the reported complaints and subsequent investigations but had been observed to adopt an outlook that the complaints and subsequent investigation had given him the opportunity to reassess his conduct as a general practitioner. He was observed to have good insight and judgment. 10. Dr Mobilia disclosed that there had been a dramatic increase in his patient load following the sudden death of Dr Andrews. At the time there were no other practitioners in the area who focused on occupational medicine and so there was a large influx of patients into his practice. As a consequence his overall prescribing of analgesic medications increased. 11. Dr Sowden concluded that Dr Mobilia was not suffering from any psychological disorders although it was appropriate that he attended a psychiatrist for a review of his mental health presentation. He was observed to be highly remorseful in relation to the alleged misconduct. He had felt a sense of obligation to the patients of his former colleague, Dr Andrews, due to the shared nature of the work they performed together and the fact that Dr Andrews had been a mentor for many years. It appeared that he had an apparent over commitment to this work during this period, but the workload of the Jindera Clinic had normalised since many of the workers compensation claims had been settled. 12. In terms of personality functioning, Dr Mobilia presented with a sense of over responsibility to his work and to his patients and in large part due to his sense of obligation to his former colleague who died in March 2011. It appeared that he worked excessive hours in this period in order to attempt to address the medical and medico –legal needs of patients within the workers compensation system. This over responsibility during the time in question was not observed to be part of a wider picture of personality dysfunction. He accepted the challenge that during the time in question, he needed a better balance between his professional and personal life. He was not observed to have an Obsessive Compulsive Personality Disorder or indeed any such significant tendencies. 13. In relation to Dr Mobilia's response to the complaints made by HCCC, while he was initially apprehensive in relation to them he reported to be over worked in the practice at the time. He was observed to be responsive to firmly implemented cognitive restructuring in relation to the underlying nature of the complaints. He accepted full responsibility for his alleged misconduct with treatment becoming focused on ways in which he could manage his practice to help ensure that all the issues presented by the HCCC were addressed appropriately. He had adopted a rational and helpful response to the complaints and investigation. This was shown by making himself acquainted with the governing prescribing legislation, the creation of thorough patient notes in medical files consistent with legislative requirements, developing a mind set in non-cancer chronic pain in accordance with contemporary opinion of the last two years moving away from the use of opiate medications in this chronic pain context. He had made a commitment to further professional education in the area of prescriptions by enrolling in the Monash University course and the AVANT Modules on line. He had used the complaints and subsequent investigation as an opportunity for improved professional practice and had made a commitment to adopt a highly conservative approach in relation to prescribing medications. He had indicated that would entail him not prescribing Schedule 8 or Schedule 4D medications now or in the future. He was also observed to be responsive to his responsibility to work sensible hours in the provision of medical services. 14. In relation to the nature of treatment provided Dr Sowden said that it had been based on cognitive behavioural therapy in conjunction with developing a thorough understanding of what appears to have transpired in the issues surrounding the alleged misconduct. Dr Mobilia had been observed to be highly responsive to sensible cognitive restructuring and had also been observed to have adopted a very grounded behavioural approach in attempting to make sensible changes to his practice to ensure that the behaviours giving rise to the alleged misconduct were highly unlikely to occur again. 15. He had been observed to have excellent insight into the inappropriateness of his prescribing which had been the subject of the complaints. He had also shown excellent insight into the possibility of harm to patients in relation to former prescribing practices and in relation to the possibility of harm attributed to diversions by patients in relation to the medications in question. 16. He was observed to be a highly committed general practitioner who had been focussed on the provision of general practice service to socially disadvantage elements of the community. He was highly remorseful in relation to the alleged misconduct within his work as a general medical practitioner. He had demonstrated a willingness and ability to analyse his practice in a constructive manner to bring about more effective change and to attempt to ensure public safety. It was unlikely that he would require supervision in the future in order to sustain the changes that he had already made in order to address these matters. Dr Sowden was not required for cross-examination. 1. Fifteen character references were also tendered on behalf of Dr Morbilia but none were required for cross-examination. A substantial number of the references were provided by medical practitioners from a wide range of practices. One reference was provided by a retired religious Minister who also had medical training. Overall they spoke highly of Dr Mobilia and his dedication to the local community. He was described as being thoughtful and well informed in relation to modern medical practice. Others made reference to his professional competence and the strong support he maintained amongst his patients. Similar views were expressed by the local chemist and others practising in related medical areas. 1. There are aspects of some of the references that warrant particular mention. Mr Robert McGuigan was a senior scientist and cytologist who had known Dr Mobilia for over a decade. He regarded Dr Mobilia as the most well read, up to date and professional GP in the area. Mr McGuigan noted that being aware of the detail of the complaints it was significant that Dr Mobilia received a large number of patients from Dr Andrews who were on medications. He believed that Dr Mobilia's prescribing profile of these medications were temporally distorted above normal but noted that they were being slowly weaned off these drugs by Dr Mobilia or he was recommending they attend other practices that were specialists in prescribing such medications, including Dr Todhunter the local pain management specialist. He observed that Dr Mobilia was genuinely contrite about the incidents comprising the complaints. He was of the view that Dr Mobilia did more for his patients welfare and health than many other medical practitioners, an observation he said he was well placed to make through his background and experience in pathology and thereby having many thousands of interactions with GPs, surgeons and other medical specialists over a thirty five year career. 1. Mr McGuigan also spoke of the regulation around restricted medications requiring the obtaining of authorities. He expressed the opinion that the provisions were 'not easily accessible' as the regulation was needlessly complex and many other medical practitioners could inadvertently put themselves at risk of similar actions by prescribing these medications at all. 2. Dr Todhunter had a practice in Albury Wodonga predominantly in pain medicine. Dr Mobilia had been known to him for over 13 years and had referred a number of patients to him for consultation. Dr Mobilia had telephoned him on many occasions enquiring about his patients and their treatment, particularly relating to opioids and seeking advice. Dr Todhunter had seen a considerable number of these patients when under the care of other practitioners. His telephone calls concerning patients and seeking advice coupled with Dr Mobilia's attendance at many meetings indicated that he had a genuine interest in being updated and treating patients with persistent pain. He was genuine in this regard but was overloaded by complex patients because of the work-load he took on. Many of those patients evidently were on opiates and many were potential drug dependent persons who required comprehensive assessment on a single occasion or multiple consultations before any drugs were prescribed. Dr Mobilia attempted to provide support to patients with complex pain problems requiring opiates and they overwhelmed his practice and caused him to become less strict and diligent in his prescribing habits. 3. Dr Neil Geddes is a consultant general surgeon in Albury Wodonga. Since commencing practice at the Jindera Medical Clinic in about 2001 Dr Mobilia had referred patients for surgical treatment and general medical advice. Dr Geddes had ongoing contact with Dr Mobilia at medical education meetings and had numerous phone conversations with him about specific cases of patient care. He found Dr Mobilia to be an excellent medical diagnostician and very reliable in assessing the medical problem with which he was confronted. His level of medical knowledge was high and his diagnostic skills were excellent. From reading many referring letters written by Dr Mobilia he concluded that his patient history notes would very frequently contain information on patients' social situation, financial status and in depth family situation. Having regard to his referring letters he believed that Dr Mobilia conducted an in depth country general practice with great care and enthusiasm for his patients. He assessed him as a very dedicated medical practitioner in a country family practice setting. The practice had been visited on a number of occasions and seemed well run and friendly and was extremely busy. 4. Dr John Moran is a general practitioner located at Wodonga. He had known Dr Mobilia since approximately 2000 in a purely professional medical context rather than within a social setting. He would sit next to Dr Mobilia at clinical meetings almost weekly and regarded the two of them as having attended more meetings than anybody in the area. Dr Mobilia matched his ability by entering into avid discussions with invited speakers and presenters. 5. Dr Moran had a high opinion of Dr Mobilia's character, professional knowledge, and did not consider him a danger to the general public in his general practice. Many times they had discussed how to deal with drug addicted and drug seeking people, however, the patients in relation to whom Dr Mobilia came to attention appeared not to be general drug seeking people. Many of them were WorkCover and pain management cases. He regarded a lot of Dr Mobilia's problems escalated after the death of Dr Andrews. His patients then became patients of Dr Mobilia. Dr Mobilia was totally committed to the Jindera community and had a good social conscience. He bulk billed all his patients and patients spoke very highly of him. He supported any move to help Dr Mobilia practice and stay in Jindera as it would be a tragedy for the town if he were not allowed to practice. 6. Dr Ron Brooder was a consultant neurologist practising in Albury. He had known Dr Mobilia for over 10 years on a professional basis. Numerous patients had been referred to him by Dr Mobilia for neurological opinion. Dr Mobilia's referral correspondence indicated that he had a genuine concern for the welfare management and effective treatment of his patients. He considered that patients referred by Dr Mobilia had usually represented 'complex and difficult management problems' that had often evolved into chronic pain syndromes. The long-term management of chronic pain syndrome often required the regular use of narcotic analgesic medication. Consideration 1. Counsel for the HCCC drew attention to the definition of unsatisfactory professional conduct appearing in the National Law as being conduct that demonstrates the judgement possessed 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. Section 139 E of the National Law defined 'professional misconduct' as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration: or (b) more than one instance of unsatisfactory professional conduct that, when the incidents are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. It was accepted that, because of the seriousness of the allegations and the gravity of their consequences, the Tribunal had to be 'satisfied' that the particulars of the complaints had been established. In determining whether the complaints were made out and in imposing any consequential orders, the Tribunal was exercising a protective and not a punitive jurisdiction. Protective orders were made to protect those members of the public who required protection and 'from the professional point of view, in order that abuse of privilege may not lead to a loss of privilege' (Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202). 56 Counsel drew attention to a number of well known cases as establishing that over- prescribing medications contrary to law by a medical practitioner could amount to conduct warranting the removal of the practitioner's name from the register and could therefore amount to professional misconduct. The Tribunal accepts that disciplinary proceedings against members of the profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession (HCCC v Litchfield [1997] NSWSC 297(1997) 41 NSWLR 630 at 637). 57 A lengthy restatement of the appropriate principles is unnecessary in this case. With one exception, that will be addressed shortly, those principles were not disputed by counsel for Dr Mobilia. In this case Dr Mobilia has accepted the totality of the case against him as particularised in the amended complaint. He also accepted that having regard to all aspects of his conduct he was guilty of professional misconduct. After consideration of all of the evidence in this matter relevant to the amended complaint, the Tribunal is comfortably satisfied that those concessions made on behalf of Dr Mobilia were properly made with the result that the Tribunal concludes that Dr Mobilia's conduct amounts to professional misconduct. 1. The issue that divided the legal representatives concerns the test to be applied by the Tribunal when determining whether a medical practitioner should be suspended or deregistered rather than being permitted to continue to practice under certain conditions, where a finding of professional misconduct had been made. Counsel for Dr Mobilia cited a number of well know cases as supporting the proposition that a conclusion of unfitness to practise is to be decided at the time of the hearing. The submission was put that unless the Tribunal found the practitioner was currently 'probably currently unfit to practice' then orders other than deregistration were usually appropriate. This was said to follow a well established line of authority commencing at least with Prothonotary of the NSW Supreme Court v Ritchard NSWCA 415 of 1986 (unreported 31/7/87). 1. In NSW Bar Association v Cummins [2001] NSWCA 284 at [26] the Court agreed with the observations of McHugh JA in Ritchard, setting out a long passage from that judgement. For present purposes it may be reduced to the following: An order for the involuntary removal of the name of a practitioner from the Roll of solicitors is made only because the probability is that the solicitor is permanently unfit to practise. Unless the Court is persuaded that the probability exists, the proper order to make will usually be one of suspension or fine instead of removal. 1. Attention was then drawn to the adoption of that approach in a number of cases decided by the previous Medical Tribunal that had continued to be applied in medical cases by this Tribunal. 2. Counsel for the HCCC did not directly call into question the authorities cited on behalf of Dr Mobilia. 3. Counsel instead relied upon a recent decision of the Court of Appeal in HCCC v Do (2014) NSWCA 307 at [43] for the proposition that significant and continuing departures from safe medical practice requires that a respondent's conduct be marked publically as justifying cancellation of registration and disqualification from being registered for a period of time. In argument it was pointed out that the Court of Appeal had made no reference to the long line of cases that directed attention to the fitness of the practitioner at the time of hearing to continue in practice. It was submitted that the Court of Appeal in Do recognised that there was another appropriate approach that did not require an assessment of whether or not, at the time of hearing, the practitioner was a fit and proper person to continue in practice. 1. The judgment of the Court of Appeal in Do, however, cannot be divorced from its particular facts. In that case the practitioner's level and scale of inappropriate prescribing and the lack of care involved was obviously very serious. It was held that the Tribunal had been in error in failing to recognise the seriousness of the conduct and the fact that it was clearly a case requiring cancellation of registration together with a period specified before registration could again be sought. In terms, the Court of Appeal did not discuss the approach outlined in the long series of cases relied upon by Dr Mobilia in the present matter. It cannot be assumed from that fact that the Court of Appeal had proposed a stand alone test that did not involve considering the present fitness of the practitioner to practice. It may well have been the case that the Court of Appeal regarded the seriousness of the conduct to be at such a level that it was simply necessary to state that fact having regard to the evidence. In that circumstance the practitioner was not presently fit to practice. Further, it cannot be assumed that the Court of Appeal overturned such long standing authority without clearly setting out that intention. In any event, the Tribunal is unable to accept the proposition that some separate or new test had been propounded by the Court of Appeal in DO. 2. The Tribunal, therefore, proceeds to an assessment of whether or not Dr Mobilia is currently probably permanently unfit to practise. It was submitted for the HCCC that on the evidence it was open to the Tribunal to suspend or cancel Dr Mobilia's registration or alternatively to impose conditions on his right to practice. Critical to this assessment was the seriousness of the misconduct and the level of insight on the part of the practitioner into the causes of his unsatisfactory professional conduct and professional misconduct. It was accepted that although the initial response to the allegation during both the PSU investigation and the s150 hearing showed a lack of insight, Dr Mobilia had demonstrated a significantly improved level of insight in the statement he filed in March 2015 and during his oral evidence in the proceedings. 1. Counsel for the HCCC pointed to two significant matters that indicated the seriousness of Dr Mobilia's misconduct. Firstly he had given evidence of an extremely close professional relationship with Dr Todhunter, being the only pain specialist in the region. Despite the close and regular contact that took place during the period particularised Dr Mobilia had engaged in prolonged inappropriate prescribing of powerful opioid medications to a significant number of patients when he knew or should have known they were drug dependent persons. It was submitted that he was ill-equipped by experience, training or temperament to deal with the extremely demanding and difficult cohort of patients and that the mentoring and supervision structures around him were inadequate to the task of addressing these deficiencies. 2. A further difficult aspect was Dr Mobilia's evidence that until the PSU investigation interview in late 2012 he was unaware of the requirements to obtain an authority from the Department of Health to prescribe a drug of addiction under the provisions of the Poisons and Therapeutic Goods Act 1966 to a drug dependent person. In evidence he said he was not aware of the existence of the Poisons List under the Poisons and Therapeutic Goods Act and the Schedules categorising medications within that list. He only became aware of these requirements during the PSU interview. It was submitted that it was difficult to accept that he did not know of these requirements. If he did not know of them it amounted to a fundamental deficiency in his required knowledge base having regard to his length of practice. There were two documents that should have alerted him to the need to at least inquire into the requirements surrounding Schedule drugs. 3. It was submitted on behalf of Dr Mobilia that he did consult, and engage, with appropriate specialists during the course of inappropriately describing narcotics. Dr Todhunter saw a number of Dr Mobilia's patients and either recommended or approved his opiate prescribing regime. The evidence showed that in his practise Dr Todhunter was prescribing some powerful drugs. In this context it could not be concluded that Dr Mobilia was ill equipped by experience, training or temperament to deal with a demanding section of his patients. He was speaking with, and referring his patients to specialist in various fields and apparently engaging with them appropriately. It appears to the Tribunal that the most significant issue is how such a well respected practitioner who was actively engaged in ongoing medical education could not know of the legislative requirements of the Poisons and Therapeutic Goods Act? 4. It was not put to Dr Mobilia that he was, in fact, aware of the legislative regime requiring authorities to be obtained under a legislative regime or that he had been untruthful in his evidence and had misled the Tribunal. His evidence was that throughout his long and ongoing association with continuing medical education the regime of authorities under legislation had never been discussed. Dr Todhunter in his reference does not state that the legislative regime was discussed by him with Dr Mobilia. Mr McGuigan commented that the regulation around restricted medications to do with authorities and what was considered normal prescribing profiles were not easily accessible. The regulation was said to be needlessly complex and many other medical practitioners could inadvertently put themselves at risk of similar action by prescribing these medications. During submissions it seemed to be accepted that there was some anecdotal evidence that the knowledge of the legislative regime was not as widespread as it should have been. If it is of some significance in this discussion to recall that once advised of the regime Dr Mobilia thereafter applied for authorities for his patients and no authority was ever declined. 5. Having regard to the state of the evidence the Tribunal is unable to conclude that Dr Mobilia had prior knowledge of the legislative regime surrounding authorities or that he was untruthful in his evidence to the Tribunal about that matter. He did, however, appear to be confused about State and Federal requirements. 6. Dr Mobilia has now practised for approximately two years under a condition imposed by the Medical Council prohibiting him from possessing, prescribing, supplying, dispensing or administering any Schedule 8 or Schedule 4D drug. Since that time there has been no suggestion that his prescribing conduct has been inappropriate. In his evidence he stated that he would no longer prescribe these medications and that would be the case if the right was restored. He had posted notices in his waiting room stating that the practice would not prescribe these drugs. Any concern as to his future conduct in this relation can be met by a condition that he is not to possess, supply or prescribe Schedule 8 or Schedule 4D drugs of addiction, a suggestion initially made by Counsel for the HCCC. 7. Having regard to the evidence the Tribunal is satisfied that Dr Mobilia has taken responsibility for the conduct, which brought him to adverse attention and has exhibited contrition and remorse. In a number of ways he has addressed the changes that need to take place in his practice. He has insight into his previous conduct and his practice short comings. This is demonstrated by the risk assessment that has been conducted and his response to it. He has enrolled in the Monash University course dealing with prescribing in general practice and his previous conduct suggests that he will continue to be actively involved in ongoing medical education. A new system has been adopted for patient records and Dr Mobilia is now alert to the need for him to keep proper working hours in order for his practice to function appropriately and safely. There is some suggestion in the evidence that a factor in him coming to adverse attention was the sudden influx of patients from Dr Andrews who were under a regime of a strong medication. It appears the high point of that difficulty has now passed. Having regard to these matters the Tribunal is satisfied that Dr Mobilia is not presently probably permanently unfit to practise but that his future practice must be undertaken in compliance with a number of conditions. 1. In the course of addresses the Tribunal took the opportunity to discuss the appropriateness of a number of conditions with both legal representatives. Generally speaking, Dr Mobilia accepted the appropriateness of most conditions discussed although he voiced concern at the viability of the practice if he was required to observe a restriction of seeing less than 35 patients a day. 2. The conditions appearing in the orders of the Tribunal for the most part reflect a consensus arising from discussion with the parties. The most significant exception is the proposal put forward by the HCCC that Dr Mobilia be fined $9900. At the adjournment of the hearing when the decision of the Tribunal was reserved, arrangements were made to receive a further note from HCCC dealing with the nature and extent of the Tribunal's power to order a fine under the National Law and the manner in which that power had been exercised. It is accepted that in this regard each case had to be decided upon his own particular facts. Having regard to the further information supplied by the HCCC it is to be noted that the conditions that the Tribunal has imposed requires Dr Mobilia to pay the costs of HCCC which were described during the hearing as being significant. The Tribunal has required Dr Mobilia to practice under category C supervision and to be responsible for any costs associated with the supervisory process and accreditation. In addition there is to be an audit process and a limit on the number of patients to be seen in any one day. There are conditions dealing with continuing medical education. 1. Having regard to the nature of the complaints in this case and Dr Mobilia's responses to them, the Tribunal is not persuaded that this is a suitable case for the imposition of a fine. In the future Dr Mobilia is to practice under a extensive regime of conditions that address the primacy of insuring the safety of patients. To the extent that a finding of misconduct and the imposition of a range of conditions has a secondary deterrent effect for practitioners at large, the Tribunal is not convinced that the imposition of a fine would add in any meaningful way to the objective of deterrence. 2. The Tribunal therefore makes the following orders: Orders 1. Dr Mobilia's conduct as particularised constitutes professional misconduct and he is reprimanded. 2. Dr Mobilia's registration as a medical practitioner is to be subject to the conditions appearing below. 3. The publication of the names of patients set out in the complaint filed in the Tribunal by the HCCC is prohibited pursuant to s.65 of the Civil and Administrative Tribunal Act. 4. Dr Mobilia shall pay the Complainant's costs of and incidental to the proceedings as agreed or as assessed. Conditions Prescribing 1. Dr Mobilia shall not possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 2. He shall provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Services 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 and to do so within 14 days of the date of this decision. 3. He shall not possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 4. He is to provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him from possessing, supplying, administering or prescribing any Schedule 4 Appendix D drug and to do so within 14 days of the date of this decision. 5. Any future change in his Schedule 8 or Schedule 4D authority must be in accordance with the protocol of the Medical Council of NSW. Dr Mobilia is not to make an application to the Pharmaceutical Services Unit ("PSU") for variation to any Schedule 8 or Schedule 4D authority prior to the expiration of 24 months from the date of this decision. Supervision 1. Dr Mobilia is to practice under Category C Supervision in accordance with the Medical Council of NSW's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. Within one month of the date of decision in this matter Dr Mobilia is to provide for approval by the Medical Council of NSW, the name and professional address of a registered medical practitioner from an accredited teaching practice who has agreed to act as a category C supervisor. The supervisor is to be provided with a copy of the decision upon which these conditions are based. If such a supervisor is not able to be secured within one month of this decision or is unable to be appointed within that period, the time for nomination and/or appointment may be varied by the Medical Council of NSW. 2. During the currency of supervision the following requirements are to be observed: 1. The supervisor shall, in an approved format, report to the Medical Council of NSW every month after each monthly meeting held with Dr Mobilia about the fact of the contact and to inform the Council if there is any concern about his professional conduct; 2. The practitioner is to authorise the supervisor to notify the Medical Council of NSW of any failure to attend meetings, termination of the supervisory relationship against the advice of the Supervisor, or any other matter the Supervisor considers appropriate; 3. The practitioner shall meet with the Supervisor for an initial period of 12 months from the date of the first meeting and thereafter for such period as the Medical Council of NSW may determine; 4. The practitioner must meet monthly with the Supervisor for a minimum of 2 hours with the first meeting to occur within 6 weeks of the date of this decision (subject to any variation in time made by the Medical Council of NSW in accordance with clause 6 above. The first meeting shall take place at the Jindera practice and subsequent meetings shall be held at a place and time nominated by the Supervisor after discussion with Dr Mobilia; 5. The monthly meetings should include discussion of the following matters – 1. the practitioner's practice management; 2. professional development as a registered medical practitioner; 3. record keeping; 4. workload; 5. compliance with legislation concerning prescribing scheduled medications ; 6. any other issues deemed appropriate by the Supervisor. 1. In the event that the approved Supervisor is no longer willing or able to continue in that role, the practitioner is to nominate another Supervisor for approval by the Medical Council of NSW within 28 days of the cessation of the previous supervisory relationship; and 2. The practitioner is to be responsible for any costs associated with the supervisory process. Audit 1. The practitioner is to submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW. 2. The first audit is to be held within 6 months of the date of this decision and subsequently at times required by the Council. 3. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. 4. The practitioner is to authorise the auditor(s) to provide the Council with a report of their findings and is to meet all costs associated with the audits(s) and any subsequent reports. Accreditation 1. Within 12 months of the date of this decision the practitioner shall seek accreditation of his practice in accordance with the requirements of the Royal Australian College of General Practitioners. Medical Practice 1. The practitioner shall treat no more than 35 patients in any day. Education 1. The practitioner shall, within 6 months of the date of this decision, complete the Issues in General Practice Prescribing course offered by Monash University. 2. Within 30 days of completing this course he is to provide documentary evidence to the Council that he has satisfactorily completed the course. 3. In the event that the Issues in General Practice Prescribing course offered by Monash University is unavailable, he must propose to the Medical Council of NSW for approval of a similar course to be undertaken in accordance with the requirements of this condition no later than 60 days from date of this decision. 4. The practitioner is to bear responsibility for any costs Incurred in meeting this condition. Other 1. The practitioner is to authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Services Unit (NSW Health) for the purpose of monitoring compliance with conditions. 2. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 3. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 03 June 2015