Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Shinwari [2015] NSWCATOD 59 Hearing dates: 23,24,25 February 20152,3,4,5,6 March 201515 June 2015 Decision date: 15 June 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ Dr M Cox, Professional member Dr L Cotterell, Professional member C Berglund, Lay member Decision: Respondent found guilty of professional misconduct. Interim orders imposing practice conditions, Proceedings stood over for stage 2 hearing on 17 and 18 September, 2015. Catchwords: Medical practitioner engaged in rapid opioid detoxification treatment-held inter alia multiple failures to safely practise in a specialised area of medicine-constituting in the aggregate professional misconduct. Legislation Cited: Health Practitioner Regulation National Law Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Mohammed Rahman Shinwari (Respondent) Representation: Counsel P Griffin (Complainant) J Morris SC, and G Babe (Respondent) Solicitors HCCC (Complainant) Norton Rose Fulbright (Respondent) File Number(s): 1420073,1420112 reasons for decision Introduction 1. The Complainant, the Health Care Complaints Commission (HCCC) has instituted proceedings against the Respondent, Dr Mohammad Shinwari under the Health Practitioner Regulation National Law (NSW) ("the National Law"), which are constituted by two Notices of Complaint. The proceedings with respect to each Notice of Complaint were heard concurrently, and such evidence as was relevant to the one became evidence in the other. Each of the Notices of Complaint alleges that the respondent was guilty of unsatisfactory professional conduct and, in addition, professional misconduct. The First Notice of Complaint 1. This Notice of Complaint contained three complaints, which were in the following terms; TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation 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") THAT Dr Mohammad Rahman SHINWARI of 192 Heathcote Road Hammondville, New South Wales 2170, being a medical practitioner registered under the National Law COMPLAINT ONE 1. Is guilty of unsatisfactory professional conduct under section 139B(1)(a) 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 BACKGROUND 1. The practitioner commenced work on a sessional basis at the Psych 'n' Soul Clinic in Ultimo, Sydney ('the Clinic') in about May/June 2009. The practitioner was employed at the Clinic to perform Rapid Opioid Detoxification ('ROD') on opioid dependant patients. 2. During the period he worked at the Clinic, the practitioner was also employed at the All Care Medical Centre in Hammondville, Sydney, where he was in general practice training. The practitioner obtained his fellowship of the Royal Australian College of General Practitioners in September 2010. 3. On 28 September 2010 Patient A (DOB 24/10/86) a female patient with a history of heroin and other drug use attended the Clinic and underwent a psychological and psychosocial assessment. She was assessed as a suitable candidate for ROD. 4. ECG results for Patient A reported on 27 September 2010 showed that she had a prolonged QTc interval of 0.445 msec. The results of a second ECG performed on 28 September showed a more prolonged QTc interval of 0.470 msec. 5. On 29 September 2010 the practitioner was the sole medical practitioner on duty at the Clinic and was responsible for administering ROD to three patients, including Patient A. 6. The practitioner assessed Patient A and reviewed her ECG results, prior to commencing the ROD treatment. 7. At approximately 1730hrs Patient A was observed by a staff member at the Clinic to be unconscious and breathing noisily. She was transferred to Royal Prince Alfred ("RPA") Hospital, Camperdown by ambulance shortly thereafter. Patient A died at RPA Hospital on 30 November 2010. PARTICULARS OF COMPLAINT ONE 1. On 29 September 2010 the practitioner performed ROD on Patient A in circumstances where he: 1. lacked sufficient knowledge to perform the procedure including sufficient knowledge of the contraindications and relative contraindications for performing ROD and of the risks associated with ROD; 2. failed to adequately inform himself of the relevant policies, procedures and best practice in the area of ROD, including the NSW Health Rapid Detoxification From Opioids – Guidelines ("ROD Guidelines") and/or; 3. lacked adequate training and/or experience in the area of ROD sufficient to make sound clinical judgments. 1. The practitioner failed at any time prior to initiating the ROD procedure on 29 September 2010 to obtain a detailed drug use history for Patient A. 2. The practitioner failed at any time prior to initiating the ROD procedure on 29 September 2010 to obtain a detailed medical and psychiatric history for Patient A. 3. The practitioner failed at any time prior to initiating the ROD procedure on 29 September 2010 to contact Patient A's general practitioner and methadone prescriber to discuss Patient A's suitability for ROD treatment. 4. The practitioner failed at any time prior to initiating the ROD procedure on 29 September 2010 to conduct a comprehensive medical assessment of Patient A as required by the ROD Guidelines. 5. On 29 September 2010 the practitioner reviewed Patient A's abnormal ECG results of 27 and 29 September 2010. The practitioner: 1. failed to document any conversation with Patient A regarding the results; 2. failed to record any medical opinion reached by the practitioner with respect to the results; 3. failed to refer Patient A to a cardiologist to obtain a specialist opinion; 4. failed to rule out cardiac disease (a contraindication as per the ROD Guidelines) in Patient A prior to proceeding with ROD treatment; 5. failed to adequately consider the risk of a cardiac event and/or; 6. inappropriately proceeded to initiate ROD treatment for Patient A. 1. The practitioner failed to make enquiries and/or have proper regard to Patient A's last opiate use prior to initiating ROD treatment in that he: 1. failed to inspect the clinical records for any notation of Patient A's last opiate use, including time, type of drug and amount used, and/or 2. failed to question Patient A about her last opiate use and record the time, type of drug and amount used 3. by his conduct at (a) and/or (b), failed to satisfy himself that Patient A had been opiate-free for a 48 hour period prior to ROD being commenced, as required by the ROD Guidelines 1. On 29 September 2010 Patient A suffered a fall at the Clinic at approximately 1200hrs. The practitioner: 1. failed to conduct a thorough medical examination of Patient A at the time of the fall; 2. failed to instruct nursing staff to perform ECG and BSL tests on Patient A following the fall; 3. failed to instruct nursing staff to conduct hourly observations of Patient A including neurological observations following the fall; 4. failed to instruct nursing staff to notify him of any further deterioration in Patient A's condition. 1. (Not pressed at hearing) COMPLAINT TWO 1. Is guilty of unsatisfactory professional conduct under section 139B(1)(b), (a) and (l) of the National Law in that the practitioner has: 1. contravened clause 7(1) and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 ("the HPR Regulation"); and/or 2. engaged in conduct that demonstrates that the care and judgment 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 (particulars 12 and 13 only) ; and/or 3. engaged in improper or unethical conduct relating to the practice or purported practice of medicine (particulars 12 and 13 only). PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to make and/or maintain adequate clinical records for Patient A with respect to: 1. drug use history 2. medical and psychiatric history 3. medical assessment 4. explanation of procedure and informed consent (including failure to sign 'Request for Admission & Consent Form', 'ROD Informed Consent' form and 'Consent for Slow Release Naltrexone' form) 5. Patient A's progress during and post procedure, including timing of entries 6. time of inserting the Naltrexone implants into Patient A's abdomen 7. number of Naltrexone implants inserted into Patient A's abdomen 1. The practitioner failed to make a contemporaneous record of Patient A's fall at approximately 1200hrs on 29 September 2010 or any proximate examination of Patient A conducted by him in respect to this incident in the clinical records. 2. The practitioner failed to record that the critical incident report completed by him regarding Patient A's fall at approximately 1200hrs on 29 September 2010 was made retrospectively at approximately 2000hrs after the practitioner had returned to the Clinic that evening and following Patient A's transfer to hospital. 3. The practitioner falsely and/or misleadingly documented in the critical incident report that he had given immediate/urgent instructions to nursing staff to conduct hourly observations of Patient A following her fall at 1200hrs on 29 September 2010. COMPLAINT THREE 1. Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT THREE 1. The particulars of Complaints One and Two are repeated and relied on, both individually and cumulatively. The Second Notice of Complaint 1. This Notice of Complaint contained three complaints which were in the following terms; The Civil and Administrative Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation 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") THAT Dr Mohammad Rahman SHINWARI of 192 Heathcote Road Hammondville, New South Wales 2170, ("the practitioner"), being a medical practitioner registered under the National Law COMPLAINT ONE 1. Is guilty of unsatisfactory professional conduct within the meaning of 139B(1)(a) of the National Law in that he 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 BACKGROUND 1. The practitioner commenced work on a sessional basis at the Psych 'n' Soul Clinic in Ultimo, Sydney ('the Clinic') in about May/June 2009. The practitioner was employed at the Clinic to perform Rapid Opioid Detoxification ('ROD') on opioid dependant patients. 2. During the period he worked at the Clinic, the practitioner was also employed at the All Care Medical Centre in Hammondville, Sydney, where he was in general practice training. The practitioner obtained his fellowship of the Royal Australian College of General Practitioners in September 2010. 3. On 1 September 2010 Patient B (DOB 22/03/78), a male patient with a history of heroin use, attended the Clinic and underwent a psychological and psychosocial assessment. He was assessed as a suitable candidate for ROD. 4. Patient B underwent the ROD procedure later the same day. Dr Shinwari was the medical practitioner responsible for administering ROD to Patient B. 5. Patient B was discharged from the Clinic the following morning, 2 September 2010, sometime after 0700hrs. PARTICULARS OF COMPLAINT ONE 1. On 1 September 2010 the practitioner performed ROD on Patient B in circumstances where he: 1. lacked sufficient knowledge to perform the procedure including sufficient knowledge of the contraindications and relative contraindications for performing ROD and of the risks associated with ROD; 2. failed to adequately inform himself of the relevant policies, procedures and best practice in the area of ROD, including the NSW Health Rapid Detoxification From Opioids – Guidelines ("ROD Guidelines") and/or; 3. lacked adequate training and/or experience in the area of ROD sufficient to make sound clinical judgments. 1. The practitioner failed at any time prior to initiating the ROD procedure on 1 September 2010 to obtain a detailed drug use history for Patient B. 2. The practitioner failed to make enquiries and/or have proper regard to Patient B's last opiate use prior to initiating ROD treatment in that he: 1. failed to inspect the clinical records for any notation of Patient B's last opiate use, including time, type of drug and amount used, and/or 2. failed to question Patient B about his last opiate use and record the time, type of drug and amount used 3. by his conduct at (a) and/or (b), failed to satisfy himself that Patient B had been opiate-free for a 48 hour period prior to ROD being commenced, as required by the ROD Guidelines 1. The practitioner failed at any time prior to initiating the ROD procedure on 1 September 2010 to obtain a detailed medical and psychiatric history for Patient B. 2. The practitioner failed to order and/or review diagnostic tests for Patient B prior to initiating the ROD procedure on 1 September 2010, including: 1. blood screening 2. ECG 3. urine drug screen 1. The practitioner failed to adequately assess Patient B for contraindications and relative contraindications to ROD prior to initiating the ROD procedure on 1 September 2010, including: 1. a history of heart disease or evidence of heart disease on clinical examination 2. chronic renal impairment 3. decompensated liver disease 4. current dependence on benzodiazepines, alcohol, or stimulants 5. history of psychosis 6. history of treatment for depression (relative contraindication) 7. unstable social circumstances (relative contraindication) 1. The practitioner failed at any time prior to initiating the ROD procedure on 1 September 2010 to conduct a comprehensive medical assessment of Patient B as required by the ROD Guidelines. COMPLAINT TWO 1. Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: (iv) contravened clause 7(1) and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 ("the HPR Regulation") PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to make and/or maintain adequate clinical records for Patient B with respect to: 1. drug use history 2. medical and psychiatric history 3. medical assessment 4. explanation of procedure and informed consent (including incomplete 'Treatment Agreement and Informed Consent' form) 5. Patient B's progress during and post procedure, including timing of entries 6. time of inserting the Naltrexone implants into Patient B's abdomen 7. number of Naltrexone implants inserted into Patient B's abdomen 8. last review and patient's suitability for discharge 9. discharge plan COMPLAINT THREE 1. Is guilty of professional misconduct under section 139E of the National Law in that he has: (iii) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or (iv) engaged in 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 his registration. PARTICULARS OF COMPLAINT THREE 1. The particulars of Complaints One and Two are repeated and relied on, both individually and cumulatively. 2. The matters alleged in the Notice of Complaint dated 12 September 2013 and filed in the Medical Tribunal of NSW are relied on in support of the complaint of professional misconduct. A 2 stage process 1. With the consent of the parties we determined to conduct the proceedings on a two-stage process having regard to the nature and extent of the complaints and their particulars and having regard also to those portions of the complaints and particulars which were contested by the respondent. The reasons for decision which are set out below are confined to a determination of the stage 1 process, namely whether the complaints brought against the respondent have been made out and whether the Tribunal should make any findings as to unsatisfactory professional conduct or professional misconduct consequent thereon. Suppression order 1. The Tribunal confirmed a non-publication order under the National Law which had previously been made in a Directions hearing. ROD 1. These proceedings arise out of the administration at the Psych n Soul Clinic of Rapid Opioid Detoxification, which is defined in general terms as "the administration of one or more opioid antagonists (naltrexone and/or naloxone) to a person for the purposes of accelerating opioid withdrawal and rendering the person opioid free" (NSW Health Guidelines). The evidentiary material General background 1. A large amount of documentary material became evidence in the proceedings, and a number of witnesses gave oral evidence. As the proceedings evolved, and the respective positions of the parties changed, some of the evidentiary material became less relevant. The respondent admitted some of the complaints. The background matters which we shall shortly describe, and the specific material with respect to each of the complaints will be that which we consider relevant to the issues which fall for consideration. 2. The respondent was born in Afghanistan in 1957. He studied medicine in the USSR, and completed his degree in 1984. He worked for the Ministry of Defence in Afghanistan in a hospital in Kabul until he left that country in 1990. Whilst working at the hospital he completed a PhD dealing with the treatment of mine explosion injuries of the extremities. After a period as a resident and then registrar, the respondent worked as an orthopaedic/trauma surgeon. He also commenced teaching year five and six medical students and other academic work. He, and later, his wife, emigrated to Pakistan in 1990. They left Pakistan in September 1992 and emigrated to Australia. In Australia he undertook training and some clinical examinations. He obtained a position at Gosford Hospital in 1999 as an intern and later worked at Bankstown, Westmead and Mount Druitt hospitals. In 2004 and 2005 he worked as a career medical officer and as a rehabilitation registrar at Nepean hospital. He had also been undertaking locum work in the emergency departments of a number of hospitals on a private basis. In 2007 he commenced training in general practice on a part-time basis, and later worked in general practice in a number of suburban practices. He commenced working full time in Hammondville in 2009 and stayed there after finishing his training. 3. The respondent came to know Dr Nasrin Moin who told his wife about the work at the Psych n Soul detoxification clinic where she worked. This was said to involve detoxification of heroin addicts, that the procedure was simple, that there were only a couple of patients to attend to and that the hours were not particularly long. He was told that the clinic was "reputable and have been established for quite a while." The respondent saw this as an opportunity of working on a Wednesday, which day he did not work at the general practice. In an affidavit sworn 14 October, 2014 for the purposes of these proceedings the respondent said that he thought he could earn some additional money this way. This is to be contrasted with his statement given in evidence that he took on work at the clinic to find out about drug addiction in Sydney. 4. In his statement the respondent described the clinic in Ultimo when he first attended for an interview with the proprietor, Dr Ross Colquhoun. He noted "typical stainless steel surgical beds", other items which he had commonly seen in surgeries, and staff including nurses. At some stage, probably after he commenced working there, he noted also that there was a drug safe which was always locked, progress notes for nurses and doctors, standard forms, clinical files and surgical equipment. This was used during certain implant procedures. He said that much of the equipment was disposable but not all. Those that were not were sent out for cleaning and were returned in sterile bags. There were also disposable surgical masks, gloves and gowns, and an emergency trolley with bag and mask and other equipment for use in an arrest, endotracheal tubes, a pulse oximeter machine and there may have been a defibrillator. 5. The respondent commenced working at the clinic in either May or June 2009, working one day a week on a Wednesday. As part of his initial training he observed Dr Moin performing procedures for two or three days. He noted that she interviewed patients and explained the risks of the procedure and warned them about opiate use after the treatment. He saw Dr Moin administer treatment and premedication as well as the administration of oral naltrexone. After the patient settled from any withdrawal symptoms, a naltrexone implant was placed under the skin and more sedatives were given if required. He noted that patients were observed most of the time overnight and sent home the next morning. 6. After the respondent commenced working there he was visited by a Dr John Sivewright, whom the respondent assumed was a very experienced practitioner in opiate addiction treatment using naltrexone and naloxone. He was told that he was "doing well". 7. The respondent said that pre-admission information was collected by psychologists, mostly Dr Colquhoun, before the patient was referred to him to have the consent explained and signed. This required an explanation of the procedure, the taking of a history of recent drug usage and advice regarding the symptoms that would be experienced during and after the treatment. He was instructed to advise patients that if they had used opioids recently their symptoms would be more severe when they underwent rapid detoxification. 8. In his statement the respondent described the treatment given to patients at the clinic. It is not necessary that we set out the detail about treatment for present purposes. He did describe in some detail information given to him by Dr Colquhoun about the rapid detoxification treatment regime. He was told that research undertaken by Dr Colquhoun indicated that it was a "very successful treatment program". At all times the respondent assumed that the clinic was licensed by New South Wales Health to perform this treatment. 9. The respondent said that the normal staffing arrangements consisted of a psychologist, a receptionist working on the front desk, two morning nurses and two afternoon nurses. He started work at about 8 am and left the clinic at about 3 pm. He was regarded as being on-call until about 8 am the next day if needed. 10. In the ordinary course of events, a patient who came for a treatment would be assessed during the morning by Dr Colquhoun and the nursing staff. If the patient came for detoxification, then the Narcan challenge would usually be administered after premedication at a time when the respondent was involved in the process. He said he did not generally receive the documentation relating to the pre-admission psychological assessments and the like which were kept in the psychology file. He did receive blood tests, ECG results and consent forms. He would review this information and discuss the consent form with the patient. He would also discuss the treatment and its effects. 11. The respondent said in evidence that he did not generally have a particularly heavy work load whilst at the clinic. It depended on how many patients were being treated at the one time. He only had responsibility for the treatment room, where between one and three patients would be treated on any day. 12. The respondent said that he did not know about guidelines published by New South Wales Health concerning rapid detoxification until after the incident which gave rise to these proceedings. This was contrary to a statement which he had made to an investigator retained by the HCCC. The first Notice of Complaint. 1. Patient A came under the care of the respondent on 29 September, 2010. It is the tragic circumstances which attended her treatment at the clinic which are the genesis of the proceedings involving the first Notice of Complaint. Much of the essential detail is set out in the Particulars of the several complaints, and it is not necessary to expand on this, except in certain respects to which we shall shortly refer. 2. The respondent conceded that he was inadequately trained and "that had he used his usual practice, his assessment, record keeping and clinical processes were inadequate." He accepted for the purpose of the proceedings that each of the complaints amounted to unsatisfactory professional conduct and were capable of amounting to professional misconduct. In particular with respect to patient A the respondent admitted the following particulars: 1. Complaint 1, Particulars 1– 5, 6 (c) – (f), 7 (c), 8 (b) and (d). 2. Complaint 2, Particulars 10, 11 ("so far as it alleges that he failed to create a contemporaneous record"),12. 1. It is necessary, therefore, to deal with the area of controversy which is not included within the admissions made. Particulars 6(a) and (b). 1. The controversy with respect to Particulars 6 (a) and (b) is grounded in an assertion by the respondent that he had two conversations with patient A on 29 September 2010. He said that when she first arrived at the clinic a further ECG report which he had ordered the previous day was not available. The only report available to him was that of 27 September, which showed an irregular result. He said that he spoke with patient A before and after receiving the result of the second ECG and that he documented both conversations. There is only one record of any clinical notes of the respondent with respect to this patient which has been made available to the Tribunal. The parties have no other document or record relating to any other conversation. The document which is available does not record any discussion by the respondent of any ECG report. Assuming that the document which is available records the first conversation which the respondent had with this patient that day, and that the ECG results of 27 September 2010 were available to the respondent, as he concedes, the respondent therefore concedes that Particular 6 (a) and (b) are proven with respect to the ECG result of 27 September 2010. It is the result, therefore, of the later ECG that remains in contention. 2. On one basis, given the overall concessions made by the respondent, it is not really profitable to pursue this matter. However, the HCCC submitted that it is something that goes to the credit of the respondent. It is for this reason that we shall examine such evidence as is available and have regard to the competing submissions of the parties in determining this matter. 3. We observe that the handwritten notes of the respondent concerning his consultation with patient A are similar in length and content to those which he created concerning his consultation with patient B. It was the evidence of the respondent that he had had a very brief conversation only with patient A when he initially saw her, because the results of the most recent ECG had not come in at that stage. When they did arrive later that morning it was then that he had the more detailed discussion with patient A. Inferentially, therefore, his notes concerning the more extensive discussion with, and examination of, patient A which are in evidence relate to the ECG exam results of 29 September 2010. However, such a conclusion would include within it a conclusion that the respondent did not make any notes concerning his initial discussion with patient A. This is also a distinct possibility, particularly as the notes with respect to both patients A and B make no reference to ECG results. 4. The contrary proposition is based upon evidence given that there are distinct doubts about whether all of the documentation and records of the clinic concerning patient A are available. At the time that the ambulance attended the clinic, the officers asked for some documentation which they could bring to the hospital. Nurse Tancred and an administrative staff member at the clinic assembled some documents from the files, copied them and gave them to the ambulance officers. The hospital has made those documents available to the HCCC. They are obviously not complete because the respondent was able to produce to the Tribunal documents which he had obtained from the Coronial file which were additional to those produced to the Tribunal by the HCCC. Accordingly, it may safely be assumed that there is considerable doubt about whether or not all of the clinical notes and records of the clinic are in fact available. It is possible, therefore, that the respondent did make some further notes about one of the exchanges he had with patient A that day and those notes are missing. Furthermore, one of the nurses said that he had completed a critical incident report following the patient's fall at 12 noon, and this document is not included in those which have been made available. 5. We are conscious that the HCCC bears the onus of making out each of the complaints to the appropriate standard, namely that we must be comfortably satisfied that they have been established on the balance of probabilities. During the course of most litigation, and during the course of these proceedings, assertions were made by both parties about particular matters. The usual rule is that the party asserting a particular matter bears the burden of establishing it to the satisfaction of the court or tribunal. We approach this matter on the basis that if there is a particular matter which is adverse to the interests of the respondent, we need to be comfortably satisfied that it has been made out, albeit on the balance of probabilities. 6. We have concluded that we cannot be comfortably satisfied that the respondent did not record the ECG results of 29 September, and that we should proceed on the basis of the assertion of the respondent that he did so, and the records are missing. Nevertheless, as has been conceded there was a failure to record the ECG results of 27 September. Particulars 7 (a) and (b). 1. The respondent resisted these matters on the basis that he believed that he had inspected records and had questioned patient A about her last opiate use. There was evidence that clinical assessments had been carried out by Dr Colquhoun and another psychologist at the clinic before the respondent had met the patient. The respondent did not, however, seek to access those assessments and any notes. There is in evidence notations concerning these matters made personally by the patient. The totality of the evidence of the respondent does not convince us that he did in fact make any inspection and did adequately question the patient about her last opiate use, and did make any appropriate records. We are comfortably satisfied that these particulars have been made out. Particular 8(a) 1. The respondent said that after he had assisted patient A following her fall he examined her by taking her pulse and blood pressure. He examined her neck, back and legs. She did not complain of any injury. She appeared to be fine. He said that he did not recall making any notes of the examination and that he was mainly checking to see that she was stable. The respondent did not regard the fall as a serious matter. We do not find this particular proven. Particular 8 (c) 1. At first, in evidence, the respondent said that he had told the nurse, Daniel Shaw, to make hourly observations but then conceded that he may not have mentioned that they should have been carried out hourly and that it was only necessary to keep an eye on her. RN Shaw recorded in the nursing notes documenting the fall that the doctor was aware of the fall, namely Dr Shinwari, the doctor on duty, and that there were no further orders ( 'NFO'). The clinical records that Dr Shinwari made in the doctor's notes which contain an instruction to make hourly observations were, in the Tribunal's opinion, made at some point in the afternoon after 1.30pm and before Dr Shinwari left the Clinic. The timing of these notes is more likely to have followed a low pulse reading of Patient A by RN Shaw than to be instructions following Patient A's fall. The nurse's evidence was consistent that there were two files in the treatment room area for the patients. One file was kept in the office. A clipboard was used for the nurse's recordings, including their observations and medications which was kept closer to the treatment beds. The Critical Incident Form that was completed by Dr Shinwari, now admitted to have been created at around 9pm, and which contained the order for hourly observations, was not as a matter of fact, available to nurses in the afternoon. We find this particular proven. Particulars 11 and 13. 1. These particulars revolve around the creation of a critical incident report by the respondent about the fall suffered by patient A at about 12 noon. In his initial interview by the HCCC investigator, Dr Shinwari's position was that if the Critical Incident Report Form had a time of 12 noon at the top of it, then this indicated the time that Report had been made. The nurses were asked about this at the Coronial Inquiry into patient's A's death, and they were adamant that this form had not been created by Dr Shinwari at that time. One nurse who commenced her shift that day at 5pm gave evidence that she had been asked by Dr Shinwari for a blank form some time in the evening, as he said at that time that a critical incident report should be included in the file about patient A's fall. Dr Shinwari had attended the Coronial Inquiry and heard the oral evidence presented to it. Dr Shinwari's evidence is now that he had not created any written report about that fall by the time that he left the clinic after the completion of his work that day. However, the evidence is to the effect that when the respondent returned to the clinic later that evening following the hospitalisation of the patient he decided that a critical incident report should be completed. He did so, on his evidence, at about 9 pm. It is in the handwriting of the respondent. At the top is the date "29/9/10" and next to it is "12 00". It records the fact that patient A fell on the way to the toilet, that the respondent assisted the nurse to help her stand up. It records patient observations of pulse, blood pressure and oxygen saturation. The pulse rate is recorded as 75. 2. At the bottom there is a printed notation "important/to be followed up" against which the respondent has written "obs 1/24". Underneath that there is an indication that the matter is not urgent and did not require immediate attention. 3. It is interesting to note that the observations of patient A in the clinical records of Psych n Soul show a pulse rate taken at 8 am, 11 am, 1:30 pm and 4:30 pm. The rates observed are, respectively, 101, 94, 50 and 53. There is no mention of a pulse rate of 75. The respondent said that he included these observations in his critical incident report form completed at 9 pm that day from his recollection. 4. There is in evidence a copy of the clinical notes from the clinic which accompanied patient A to the hospital. Included within those notes is a notation made by the respondent on 29 September including "obs every 1/24". It is clear, therefore, that this is information which had been added to the clinical notes by the respondent later on the same day after the fall. On the evidence of the respondent it was made after about 1:20 pm. However, the evidence of the nurse, Daniel Macri is that he was never informed by the respondent to undertake hourly observations. This is consistent with the fact that the next observations of patient A recorded in the clinical notes occurred at 1:30 pm. At that stage there is recorded that patient A had a pulse rate of 50, a matter which, in our opinion, should have given rise to some concern on the part of the respondent if he had been accessing the observations chart. It is more likely that these observations were made in response to the low pulse rate than the fall, as the respondent conceded in evidence. 5. Nurses notes completed at 12:30 pm on 29 September 2010 concerning patient A refer to the fall. The notes indicate that the author witnessed the incident, so they must have been recorded by nurse Daniel Shaw. The notes record that the respondent was aware of the fall and then included the notation "NFO." The evidence is that this stood for "no further orders." 6. Lauren Tancred who worked as a nurse at the clinic and was there on the day of the incident said that she had viewed the clinical notes of patient A when she arrived there at about 5 pm that day. She saw no reference to hourly observations. 7. We observe that there is no evidence from the respondent or anyone else that he had discussed with any of the nursing staff the one hourly observations of the patient. Indeed, if he had viewed the clinical notes he would have seen that there were observations taken at 1:30 pm and no more observations as at the time he said he left that day between 3.30 and 3.40 pm. The nurses involved, Messrs Shaw and Macri both denied that the respondent had ever told them to undertake hourly observations. 8. The respondent conceded Particular 11 of Complaint 2, to the extent that it is asserted that he had failed to make a contemporaneous record of her fall. This particular is confined to a failure to make a contemporaneous record, both of the fall and the examination which he carried out. Read in this way, it is clear that the respondent has admitted this particular. 9. With respect to particular 13 of complaint 2, the respondent said that he had recorded an instruction for hourly observations to be conducted and that his documentation was neither false or misleading. However, this is not the gravamen of the particular. The allegation is directed to the contents of the critical incident report which the respondent admitted completing at about 9 pm, and in particular to that part of it which asserts that he had given immediate/urgent instructions to nursing staff to conduct hourly observations. It was said by the HCCC that firstly the critical incident report is capable of being read in this way, and secondly that reading it in this way it is false and misleading. 10. As we have earlier indicated, the respondent initially asserted that he had given instructions to the nursing staff for hourly observations to be conducted. Indeed, in the course of an interview which the respondent had with an investigator retained by the HCCC the respondent was taken to the critical incident report. He said that it was created "most probably" at 12 o'clock, being the time indicated on it. He then repeated that he had completed it at 12 o'clock and that at the same time he had written "obs 1 of 24". It was put to him that such an order for observations was inconsistent with the written report of nurse Shaw, who had recorded "NFO", which was accepted for the purpose of the proceedings as meaning "no further orders." The respondent told the investigator that the nurse had probably not gone through his incident form. 11. Of course, the information given to the investigator by the respondent was false. As he conceded, the critical incident report was completed about 9 pm. And, as we have previously found, the preponderance of the evidence is that the respondent gave no orders or directions to the nursing staff for hourly observations. 12. It was submitted on behalf of the respondent that before we could find this particular proven it was necessary to establish that the respondent did not intend to mislead or deceive anyone because at the time that he created the critical incident report he was under enormous personal stress, he did so in the presence of a nurse, that the notation of 12 noon was intended to reflect the time of the fall and not the time of the creation of the report, and that although he may not have asked for hourly observations he had created a written request at around 1:30 pm for hourly observations. Having regard to all of these matters, it was said that we could not be satisfied to the appropriate standard that there was any intention to mislead or deceive. 13. This submission presupposes, however, that intention to mislead or deceive is in some way a necessary component of the particular, or, at the least, some form of conduct which would attract the criticism of the Tribunal. We are not convinced that the question of intention is a necessary constituent of the particular leading to relevant criticism of the conduct of the respondent. In our opinion the critical incident report suggests that hourly observations were ordered after and as a direct consequence of the fall. We do not accept that any order or direction was given at any time by the respondent for hourly observations to be conducted. To the extent that the critical incident report suggests otherwise, it is both false and misleading. We find that this particular is made out. The second notice of complaint 1. The respondent admitted all of the particulars of complaints 1 and 2, save in respect of particular 5. With respect to this particular he admitted it "so far as it alleges that he failed to order diagnostic tests and that such test results do not appear in Patient B's clinical records." 2. In essence, the respondent said that he had no personal recollection of the circumstances pertaining to the treatment of this patient. Accordingly, he was not in a position to be able to resist the allegations made against him. However, he did concede, especially in connection with the particulars of complaint 1, that if he had followed the standard procedures adopted by him whilst working at the clinic, he would have conducted himself in a manner that would have put him in breach of these particulars. 3. In terms of particular 5, the respondent said that he relied on information contained in a form completed by a nurse at the clinic which indicated that these tests may have been carried out. However there is no record of any of these tests being available. The respondent submitted that the records may not have been complete, but there is simply no evidence that would allow us to infer that the records concerning this patient are not complete. Because the state of the evidence is that records of the tests referred to were not available, and because the respondent has no independent recollection of dealing with this patient, we are comfortably satisfied that this particular has been made out. The expert evidence concerning ROD 1. Professor John Saunders is an undoubted expert in addiction medicine and has had extensive experience in the administration of ROD, and in examining and researching its application. He provided two reports and gave oral evidence. 2. Professor Saunders has had hands-on experience in administering ROD. He had an involvement with about 200 patients, half under sedation and half under anaesthesia, with all procedures conducted in the recovery room of an operating suite, with nursing staff, himself and an anaesthetist either present or on call. This occurred in Queensland between 1996 and 2004 as part of a national evaluation of the ROD technique. The results demonstrated that the most effective treatment for heroin dependence was through an agonist such as methadone as opposed to an antagonist, which is a blocker. The results of the evaluation were reported to the Australian government as a continuous process between 2004 and 2006. The main report was published in 2004. 3. ROD was regarded as an inferior procedure because of the risk of relapse and only a small number of patients remained engaged in treatment. There was an extremely high attrition rate. The results of the evaluation were published widely in the popular press and media and there was a continuous process of alerting the public from 2004 on. Most of the practitioners in New South Wales, Queensland and Victoria ceased using the ROD technique. It continued to be applied thereafter in niche practices. Professor Saunders was only aware of Psych n Soul continuing to give this treatment in New South Wales outside a hospital setting. 4. In September 2010, if a general practitioner were to administer ROD treatment Professor Saunders would hope that such a person would have knowledge of the context in which the treatment was given. He would have expected the practitioner to be experienced in addictive disorders and a fellow of the Chapter of addictive medicine. The training program associated with this fellowship was for a period of three years full-time. In 2010, because ROD was not in use, no training was provided for it. In these circumstances he would have expected a practitioner considering undertaking the use of this treatment to have made a preliminary assessment by accessing the ROD guidelines issued in New South Wales. 5. He made the following observations concerning the conduct of the respondent; 1. a prolonged QTc interval shown on the ECG is well recognised as leading to cardiac arrhythmias. " A characteristic arrhythmia caused by prolonged QTc interval is a polymorphic ventricular tachycardia termed "torsades de pointes". A high degree of caution is therefore needed before subjecting a patient with a prolonged QTc interval to sedating drugs or to any procedure that would stress the heart." 2. the presence of the abnormal ECG reading was a relative contraindication to the administration of ROD. There was a significant risk in administering the procedure in the circumstances. "…. It is likely that the prolonged QTc interval was a cause or contributory factor to" the death of patient A . 3. it was a "serious dereliction of medical duty" for the respondent to have proceeded with ROD and the naltrexone implant without reviewing the results of pathology tests and obtaining information from the general practitioner of patient A who was her authorised prescriber of methadone. 4. the death of patient A occurred "in a setting where there was inadequate medical and nursing observation and the absence of any qualified staff to manage her" after the respondent had left the clinic. 5. there is no indication in the clinical notes that the respondent enquired of patient A when she had last taken heroin, which had occurred the previous evening. There was therefore a high likelihood of her having precipitated withdrawal from being given naloxone or naltrexone. 6. the clinical notes of the respondent were inadequate. There was no quantification of her heroin use and no qualitative information about the use of other drugs. There was no assessment of opioid dependence or physical, mental or other problems related to drug use. There was no comment on the ECG abnormality in the notes. "The brief, indeed skimpy, nature of the assessment as recorded by (the respondent)… Is inadequate considering the nature of ROD, the importance of ensuring that patients are physically fit for the procedure and that all potential contraindications, alternative treatments and necessary precautions have been taken into consideration." 7. there is no evidence that the respondent considered any recent drug use by patient A and he should have advised her to undergo detoxification either in a public sector unit or at home under the supervision of a general practitioner prior to her potentially returning to the clinic for a challenge with naloxone and insertion of an implant. 8. the respondent's "standard of practice …. (was) significantly below what would be accepted of a practitioner of an equivalent level of training or experience." We accept and take into account the opinion of Professor Saunders in determining these proceedings. 1. A report of Dr Jeannie Ellis, a general practitioner with experience in emergency medicine was to similar effect. Dr Ellis also gave oral evidence. She was also critical of the respondent's recordkeeping. She commented on the requirements of contemporaneous record keeping, particularly in an acute care setting. She considered that there were potentially severe consequences in the light sedation detoxification processes carried out at Psych n Soul. She considered that Dr Shinwari should have included the date and time and content of the procedure he was undertaking. Documentation was also important if care was to be transferred in circumstances of an adverse event, as the ongoing care team would need to know the sequence of events and what had happened in the management of the patient. We also accept and apply the opinion of Dr Ellis. Conclusions based on findings 1. The respondent conceded that with respect to those particulars of both Notices of Complaint which were admitted, they constituted individually unsatisfactory professional conduct. The respondent also conceded that in the aggregate they were capable of being characterised as professional misconduct. Both these expressions are defined in the National Law, 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertakingA contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) Failure to comply with decision or order of Committee or the TribunalA contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) Contravention of requirement under Health Care Complaints Act1993A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993. (f) Accepting benefit for referral or recommendation to health service providerAccepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for— (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting benefit for recommendation of health productAccepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering a benefit for a referral or recommendationOffering or giving a person a benefit as inducement, consideration or reward for the person— (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Failure to disclose pecuniary interest in giving referral or recommendationReferring a person to, or recommending that a person use or consult— (i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing Engaging in overservicing. (k) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. Other improper or unethical conduct (1) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (2) For the purposes of subsection (1)(i), a registered health practitioner has a pecuniary interest in giving a referral or recommendation— (a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or (b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or (c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or (d) in any circumstances prescribed by the NSW regulations. (3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class. (4) In this section— benefit means money, property or anything else of value. recommend a health product includes supply or prescribe the health product. supply includes sell. 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 the practitioner's registration. 1. We are satisfied that it is appropriate to conclude that each of the particulars of complaint which we have found to have been established against the respondent constitutes unsatisfactory professional conduct under either of section 139B(1) (a) or (b). So much was conceded by the respondent. 2. It is then necessary to consider whether and to what extent the conduct of the respondent so found may be characterised as professional misconduct, as contended for by the HCCC. It is not necessary that we deal with each of the particulars individually. This is because, to some extent, they all arise out of the circumstances in which the respondent found himself when he came to commence work at the Psych n Soul clinic. It is not necessary that we deal at this stage with the circumstances of the respondent in detail, because they are more appropriately considered in the course of the stage 2 hearing which is yet to be conducted. We note, however, that the respondent's conduct, most of which he has readily conceded during the course of the proceedings, reflects a failure to comprehend that he was practising in a specialised area of medicine and was ill-equipped to do so. These failures have manifested themselves in circumstances where he has undertaken the treatment of patients by subjecting them to a regime of drugs and medication which can produce dangerous side-effects, he has failed to carry out the necessary investigations and examinations of the patients' histories, has failed to record and document many relevant matters, has failed to appreciate the significance of an abnormal ECG result, and has failed to properly instruct and monitor nursing staff so as to ensure a safe treatment environment for these patients. In describing the conduct of the respondent in this general fashion, we should not be taken to have minimised the effect of each and every example reflected in the particulars which we have found proven against him. However, the narration of the conduct of the respondent which we have found and which we have set out in general terms, coupled with the failings identified by Professor Saunders and by Dr Ellis, is ipso facto sufficient, in our opinion, to allow us to safely conclude that the unsatisfactory professional conduct which we have found in the aggregate amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the registration of the respondent. It therefore constitutes professional misconduct. We so find. Interim Decision and further proceedings. 1. At the conclusion of the hearing of the Stage 1 proceedings, on 6 March, 2015 we issued an Interim Decision. We said in part: "Having regard to the nature and extent of the particulars of each of the complaints set out in each notice of complaint and the admissions made by the respondent, we are comfortably satisfied for present purposes that in the aggregate, they constitute professional misconduct. We shall publish written reasons as soon as possible after the conclusion of the proceedings." 1. The proceedings were stood over for stage 2 hearing on 15 and 16 June, 2015. In the interim, with the consent of the parties we imposed practice conditions which inter alia required the conduct of an audit of the respondent's medical records in the general practice in which he was engaged, and imposed Category B supervision. The intention was that the audit and supervisor's reports would be available for the Stage 2 hearing. As it transpired, the audit report was unsatisfactory and counsel for the HCCC responsibly informed the Tribunal that he was not in a position to tender it. Arguably, the results of the audit may be of significance in determining the ultimate outcome of these proceedings. With the consent of the parties we determined to stand the proceedings over again for the conclusion of the stage 2 hearing on 17 and 18 September, 2015. The further delay is regrettable, but essential to allow for the proper determination of these proceedings. By agreement the interim practice conditions were continued, which will allow for a further audit report to be prepared, and additional supervision to be undertaken. We have now also taken the opportunity to publish our reasons for decision on the stage 1 process, which we have set out above. Orders 1. We confirm the following orders made on 15 June, 2015; 1. The respondent is to serve written references and any other documents he intends to rely upon within 21 days of the provision of the written reasons for decision by the Tribunal. 2. The complainant is to serve any further documents it intends to rely upon within 14 days of service of the documents referred to in 1 above 3. The respondent is to serve any documents in reply within seven days 4. The documents relied upon by each of the parties are to be filed with the Tribunal by 24 August 2015 including both hardcopies and copies recorded on USB sticks. 5. The parties have liberty to apply to the Tribunal on two days' notice, with any proceedings held pursuant to the exercise of that liberty to 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: 22 June 2015