Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care complaints Commission v Thomas [2015] NSWCATOD 60 Hearing dates: 16, 17 March 2015 Decision date: 24 June 2015 Jurisdiction: Occupational Division Before: Judge K P O'Connor, Deputy President Dr V Sutton, Professional Member Dr S Toh, Professional Member C Berglund, Lay Member Decision: 1. The respondent's registration is cancelled pursuant to s 149C(1)(b) of the National Law. This order is to take effect 14 days after the date of publication of these reasons. An application for review of the order pursuant to Division 8 of the National Law may not be made for a further 12 months from the date of commencement of this order. 2. The respondent is to pay the applicant's costs of the proceedings. Legislation Cited: Health Practitioner Regulation National Law, No 63 (NSW) Poisons and Therapeutic Goods Regulation 2008 Poisons and Therapeutic Goods Act 1966 Cases Cited: Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 HCCC v Fiay, unreported, 31 August 2012 (NSW MT) HCCC v Gorondy-Novak [2011] NSWMT 3 HCCC v Ivits [2014] NSWCATOD 148 HCCC v Jamieson [2014] NSWCATOD 56 HCCC v King [2013] NSWMT 9 HCCC v Low [2015] NSWCATOD 18. Prakash v HCCC [2006] NSWCA 153 Re Catchlove, unreported, 8 February 2006 (NSW MT) Sabag v HCCC [2001] NSWCA 411 Spicer v Medical Council, unreported, 19 February 1981 (CA) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Jawahar Thomas (Respondent) Representation: Counsel: R Graycar (Applicant) J Lonergan SC (Respondent Solicitors: Meridian Lawyers (Respondent) File Number(s): 1420248 Publication restriction: Pursuant to Schedule 5D Clause 7(1)(a) of the National Law the Tribunal has made a non-publication order in respect of the names of the patients referred to in the proceedings. REASONS FOR DECISION 1. By application filed 10 July 2014 the Health Care Complaints Commission (HCCC) asks the Tribunal to make disciplinary findings and orders against a registered medical practitioner, Dr Jawahar Thomas. The governing law is the Health Practitioner Regulation National Law, No 63 (NSW) (the National Law). 2. Dr Thomas is presently practising subject to conditions. On 23 November 2012, following an investigation of his prescribing practices by the Pharmaceutical Services Unit of the Department of Health (PSU) arising from a complaint from a pharmacist, he agreed to give up his prescribing authority in relation to drugs of addiction and other prescribed restricted substances. Relevant orders were made under the Poisons and Therapeutic Goods Regulation 2008, cl 175(1) and the Poisons and Therapeutic Goods Act 1966, s 18AA. They issued 2 January 2013. 3. As is usual, the Medical Council imposed, with his agreement, the following practice conditions on his registration, effective 31 January 2013: 1. Not to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drug) or any prescribed restricted substance (Schedule 4D Appendix D drug) 2. Any future change in his Schedule 8 or Schedule 4D authority must be in accordance with the Medical Council of NSW's protocol. This must include consultation with the Medical Council of NSW prior to the submission of any variation application to the Pharmaceutical Services Unit 3. To authorise and consent to any exchange of information between the Council and Medicare Australia and the Pharmaceutical Services Unit of NSW Health for the purpose of monitoring compliance with these conditions. 1. The Medical Council referred the matter to the HCCC. 2. The application has a single set of particulars of conduct, and refers to the treatment of eight patients, identified as Patients A, B, C, D, E, F and G, respectively. 3. Complaint One is that the conduct, if proven, demonstrate that his conduct constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a), or s 139B(1)(b) or s 139B(1)(l) of the National Law, as follows: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct 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. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Two is that the conduct, if proven, constitutes professional misconduct within the meaning of s 139E of the National Law in each of the ways described there, i.e. 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. In the case of Patient A the conduct put in issue covered the period November 2008 to 30 July 2012 (26 instances); Patient B, 7 May 2009 to 30 October 2012 (128 instances); Patient C, 19 February 2007 to 9 December 2012 (18 instances); Patient D, 20 April 2011 to 17 November 2012 (10 instances); Patient E, 24 April 2011 to 14 November 2012 (12 instances); Patient F, 31 January 2011 to 19 June 2012 (38 instances); Patient G, 17 December 2010 to 18 April 2011 (two instances). 2. The particulars assert that Dr Thomas engaged in repeated instances of improper prescribing practices to patients who were drug dependent at the time of prescription or had a history of drug dependence (Patients A to F, G is in a different category). The drugs prescribed included drugs of addiction, and other drugs that were inappropriate to administer in the circumstances. The particulars of complaint referred to instances of the administration, in circumstances of the kind mentioned, of the following Schedule 8 or Schedule 4D drugs – oxycodone, fentanyl, morphine and flunitrazepam, testosterone (the issue unique to Patient G); the following benzodiazepines – temazepam, diazepam, alprazolam, clonazepam; analgesias; and gonadal hormones. In several cases the prescription involved a combination of drugs. 3. The particulars also alleged failures to keep proper medical records (all patients) and to link records as between the two practices he worked at (Windsor, The Ponds) (Patients A, D, E, F, G, and mentioned by the expert in respect of Patient B). The records were said to be deficient in relation to such matters as recording the patient's medical history, results of examinations conducted by the practitioner, investigations undertaken by the practitioner, and diagnoses, future plans and adequacy for use by a practitioner who might take over the care of the patient. 4. The Tribunal may exercise its disciplinary powers if it finds the subject-matter of a complaint proven; or the complaint is admitted in writing to the Tribunal: National Law, s 149. We have found the complaint proven. In any case the respondent admitted the complaint. 5. The general powers of the Tribunal are wide, and include the power to impose conditions on registration, and require the practitioner to complete educational courses (see s 149A). There is a power to impose a fine (s 149B). Importantly, in the context of the present case, there is a power to suspend the health practitioner's registration for a specified period or cancel it in any of four circumstances, the one relevant to this case being a finding that the practitioner is guilty of professional misconduct (s 149C(1)(b)). 6. The HCCC sought a finding of professional misconduct, and, in its closing submissions, the making of orders that his registration as a practitioner be cancelled with a restriction preventing him from reapplying for registration for at least 18 months. Dr Thomas accepts that his conduct amounted to professional misconduct, but submits that his registration should not be cancelled, and that he should be permitted to continue in practice subject to strict conditions. 7. We have concluded that Dr Thomas's registration should be cancelled, and that he not be permitted to seek restoration to the register for a period of 12 months. The Hearing 1. The hearing commenced on 16 March 2015 and concluded the next day. The Tribunal had before it a bundle of relevant documents in support (three volumes) from the HCCC. The key items were the patient records, the investigation report of the PSU, the record of interview conducted with Dr Thomas on 23 November 2012, the expert opinion dated 13 November 2013 as to the conduct alleged provided by a highly experienced and eminent general practitioner, Dr A D W Patterson. Dr Thomas filed a statement dated 23 February 2015, and some related material. 2. Dr Thomas did not require Dr Patterson for cross examination. Accordingly, the only oral evidence was that given by Dr Thomas, who was closely cross-examined. 3. At the conclusion of the hearing counsel for the HCCC spoke to written submissions and formally applied for orders that Dr Thomas's registration as a medical practitioner on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency be cancelled under s 149C(1)(b) of the National Law; further that a period of not less than 18/24 months elapse before he make application under s 163A for review of the orders; and costs. 4. This submission went beyond the position adopted by the HCCC prior to the hearing. The HCCC advised the Tribunal in an open letter on 9 March 2015, a week before the hearing, that it would submit that it would be open to the Tribunal to cancel the respondent's registration and/or make a suspension order (12 months) with conditions and a reprimand. The letter set out conditions that might be appropriate. The letter concluded that 'these submissions, on protective orders, are subject to the evidence given at the hearing and may be varied at the conclusion of the respondent's case'. 5. Dr Thomas's counsel replied orally. She stated that Dr Thomas acknowledged the gravity of his misconduct, attributed it to a misplaced sense of pity or compassion for the patients to whom he had wrongly prescribed, said that Dr Thomas had shown remorse and insight into the wrongness of his conduct, and an important factor was that there had been no adverse reports about his conduct in the 24 months that he had now been subject to the restrictive conditions. She submitted that any disciplinary order should not go so far as cancellation, and that a suspension, or continuation in practice subject to strict conditions would be sufficient to serve the protective purpose of disciplinary orders. 6. She asked for time to present written submissions in reply to those of the HCCC. The application was granted. The Tribunal now has written submissions from the respondent dated 1 April 2015 (with a supplementary note dated 2 April 2015), and submissions in reply dated 10 April 2015 from the HCCC. Evidence 1. Dr Thomas's Background and Practice Situation. Dr Thomas was born in India in September 1964, and is aged 50 years. He graduated in medicine in India in 1988, and entered practice. He was granted registration in Australia in 2000. In the period 2000-2007 he practised in rural or outback settings in NSW, South Australia and the Northern Territory, with some practices having a very significant proportion of disadvantaged patients, many indigenous. 2. In 2007 he moved to the Windsor Family Practice, located in Windsor on the outskirts of the greater Sydney metropolitan area. Soon afterwards he purchased the practice. He said that he 'worked long hours to build up the practice' and then expanded by opening another practice at The Ponds, The Ponds Family Practice. At hearing, he advised that he now operated and worked at four bulk billing practices: those already mentioned, and the Annangrove Family Practice and the Galston Family Practice. He said that since February 2015 he had been working 42 hours a week across those practices, Monday to Saturday, and had recently stopped working on Sundays. This compared prior to February 2015 with 55 hours work time, covering all days of the week. It is apparent that he is running a not-insubstantial medical practice business. He employs 10 GPs, and 5 nurses. 3. The Conduct the subject of the Application. We have set out in summary the number of instances of inappropriate prescribing identified by the PSU, and the period of time over which these events occurred. None of the particulars of complaint were actively contested by Dr Thomas. The particulars are all supported by the material filed. 4. The conduct divided into the following categories: * Prescription of S8 drugs of addiction to patient known to be enrolled in an opioid treatment program (OTP) * Failures to conduct appropriate preliminary examination and exercise responsible medical judgment, order tests and refer to specialists as appropriate * Prescribing inappropriate drugs in combination * Failure to keep adequate clinical records * Failure to obtain required prescribing authorities, contrary to s 28 of the PTGA. * Prescribing excessive amounts and dosages. * Failing to consider contraindications. * Failure to keep proper medical records in accordance with cl 7 and Schedule 2 of the Regulation, failure to record sufficient information in the records as to usual matters, sufficient to enable another practitioner to take over the patient. * Failure to maintain objective boundaries in relation to patients with whom he had a personal connection through work or friendship. 1. In his report Dr Patterson divided the conduct revealed by the clinical records as follows: * prescription of the S8 drugs, oxycodone, fentanyl, morphine and/or flunitrazepam, to patients who had a history of drug dependence or abuse; * prescribing benzodiazepines (i.e. temazepam, diazepam, alprazolam and/or clonazepam) to patients who had a history of drug dependence or abuse; * prescribing S8 drugs in combination with benzodiazepines; * prescribing narcotic analgesia (e.g. Panadeine Forte) to patients with a history of drug dependence; * and prescribing gonadal hormones (the Patient G case, unrelated in its circumstances to those that applied to Patients A to F). 1. Dr Patterson then dealt in detail in his report with issues such as the clinical indications that might justify treatments of these kinds in the particular circumstances, usual dosage levels and frequency, risks and dangers, and specific issues such as patients who might seeking these medications for non-therapeutic purposes. 2. He then turned to the information provided in respect of each of the patients, and analysed the treatment rendered by reference to what was known about them by him, or should have been known about them by him. 3. Patient A (born 1978) was an employee of Dr Thomas. She was the domestic partner of another one of the patients whose treatment is the subject of this complaint. She had an adverse health and drug use history. Dr Patterson stated that Dr Thomas 'should have known' that prescribing oxycodone, phentermine, benzodiazepines and codeine in her circumstances was contrary to good medical practice'. His records showed that he was aware at critical points of clearly relevant information that negated the appropriateness of his course of treatment. We accept his opinion that such a combination carries with it the risk of significant side-effects that may have a fatal outcome. 4. Dr Patterson referred to the lack of any evidence that in treating this patient Dr Thomas engaged in the clinical steps required to justify such exceptional prescribing, and to check for any contraindications. In Dr Patterson's opinion he should have sought specialist assistance before embarking on the prescription regime he set for Patient A. 5. Dr Patterson stated, and we accept, that he should have been 'acutely aware' that she should not have been administering any drugs of the kind that he was administering while she was enrolled in the OTP program. He made similar comments in relation to his prescription of benzodiazepines. 6. He criticised the fact that he treated her at two different locations (Windsor, and The Ponds) when there was no formal record linkage system in place. 7. He criticised his provision of professional services to her when she was his employee. 8. Dr Patterson referred to the relevant standards in all of the matters mentioned, and was satisfied that his conduct fell below those standards, in several instances significantly below the relevant standards. 9. As noted earlier, the greatest number of consultations of concern to the HCCC were those with Patient B (man, born 1954). They cover the period 7 May 2009 to 30 October 2012. Patient B was a drug dependent patient with a history of depression, peripheral vascular diseases (femoral popliteal bypass in February 2011), colorectal cancer with multiple metastases (diagnosed in mid-2011) and CVA (i.e. stroke) (February 2012), and is now deceased. 10. Dr Patterson was highly critical of Dr Thomas's apparent failure, there being no clinical records going to the matter, to conduct the usual examinations, obtain the usual history, in particular to check for drug dependent status, and to have regard to contraindications. 11. An early signal that Patient B might be drug dependent appeared in June 2009. Dr Thomas prescribed Patient B valium for the second time in a short period on 26 June 2009. He had obtained the same drug from another doctor in the practice on 29 May 2009. More significantly, he prescribed oxycodone on 8 February 2011, by which point he was known to be drug dependent. There is no evidence that he took any history or considered contraindications. 12. Dr Patterson said: 'The prescribing of oxycodone to a drug-dependent patient may be considered reckless because it is impossible to know what other drugs, prescribed or illegally obtained, the patient may have consumed at any given time, and therefore impossible to estimate what interactions between the various substances may occur'. Dr Patterson said that prescribing oxycodone to a drug dependent patient increases the risk of significant side-effects, and they may have a fatal outcome. 13. He referred in similar terms to the first prescribing of morphine (5 August 2009), temazepam (7 July 2011), and diazepam (7 May 2009). He made similar comments in relation to the prescription of analgesics – codeine (14 December 2010). 14. In the case of two types of prescriptions, he did not criticise him, as the information provided suggested that they were both continuations of medications that had first been prescribed in a hospital setting, and it was reasonable to infer that appropriate examinations had occurred there – fentanyl (16 June 2012) and clonazepam (3 August 2012). Patient B had been receiving palliative care at Nepean Hospital during April 2012. 15. He considered that he should have sought specialist assistance from staff of a mental health care unit, or from a practitioner who specialises in the treatment of drug addictions, before prescribing oxycodone, morphine, temazapam, diazepam, and codeine. He said that Dr Thomas's 'repeated failure to seek appropriate specialist advice to confirm the correctness of the prescribing of these drugs demonstrates a profound lack of care for the safety of the patient'. 16. He was critical of the failure of his medical records to provide 'consistent, clear reasons' for the prescription of the drugs mentioned, except for fentanyl and clonazepam (the records referred to the prior hospitalisation). 17. He noted that, frequently, Dr Thomas had prescribed the drugs in the maximum allowable quantities, and frequently more than one of the drug types simultaneously. He said: 'In uncommon circumstances, a practitioner may be justified in prescribing one or other of these medications to a patient who is known to be drug dependent. In such an exceptional situation the practitioner should prescribe the minimum quantity e.g. not more than one or two days' supply, to enable the patient to be referred to an OTP or to specialists in the field of drug addiction for advice and further management.' 18. Dr Patterson was satisfied that he supplied the S8 drugs (oxycodone, morphine and fentanyl) without an authority under s 28 of the Poisons and Therapeutic Goods Act 1966, and this was not appropriate. Similarly, he should not have supplied benzodiazepines (diazepam, temazepam, clonazepam) in combination with those drugs. 19. He criticised his conduct in consulting with Patient B at two different practices, Windsor and The Ponds, when there was no record linkage system. 20. More generally, his records were below the standard required by the RACGP and the Health Practitioner Regulation (NSW) 2010. 21. He criticised his causal employment of Patient B to undertake some work at his house when he was also a patient. He referred to the possible loss of objectivity essential to good care. 22. We have given some detail in relation to Dr Patterson's observations in relation to Patient B. 23. Similar criticisms are made in relation to his treatment and prescriptions for Patient C (a man, born 1973). Patient C is described by Dr Patterson as a 'morbidly obese patient' with a history of opioid, methamphetamine, THC and alcohol abuse, depression, anxiety and lower back pain. He was a member of OTP for periods of 9 months, 5 months and 2 months in the years 2001-2013. The practice records did refer to his enrolment in OTP programs. The medications of concern prescribed to Patient C were oxycodone, flunitrazepam, alprazolam, diazepam, phentermine and codeine. He noted that the presence of morbid obesity increased the risk of an adverse event occurring. 24. Dr Patterson referred to the information known to the practice (e.g. Windsor Family Practice records dated 24 November and 10 December 2011) in relation to his enrolment in OTP programs, and that he was receiving methadone. He said that Dr Thomas should have been 'acutely aware of the need to abstain from prescribing any of these drugs to the patient'. He referred to the OTP Guidelines which identify the 'serious outcomes' of prescribing benzodiazepines and oxycodone to a patient enrolled in OTP. 25. Patient D (woman, born 1970) had a history of drug dependence, chronic knee pain following a motor vehicle accident (2007) and depression. She attended both practices. The issue here was the prescribing of morphine (MS Contin). She was in an OTP continuously for 13 months in 2009-2010. Dr Patterson made similar criticisms to those made in relation to Patients B and C. He acknowledged that, as to dosage, the quantity prescribed 20 April 2011 to 4 September 2012 might be regarded as appropriate, but that could not be said for the period 6 October to 17 November 2012 where the quantity prescribed far exceeded the limit set by the prescribing table (one tablet per day). He prescribed 140 tablets for that period (if taken evenly, three a day). 26. Patient E (woman, born 1980). This case was similar to Patient D's case, involving the prescription of morphine. The patient was described in one of Dr Thomas's clinical records as a 'doctor-shopper', on longer term MS Contin (originally prescribed in Queensland) for severe back pain following a motor vehicle accident (2007). 27. Dr Patterson's opinion was guarded in relation to whether from the records and material briefed it was open to conclude that Dr Thomas might have identified drug seeking behaviours when first consulted (20 April 2011), or subsequently. He noted that in this case that recorded his suspicion ('doctor-shopper') after the second consultation ,13 May 2011 (it appears in the records on 18 May 2011), and several consultations later he noted (31 July 2012) 'no meds given as schedule 8 drug abuse possible'. Dr Patterson said that '[O]nce the suspicions of 'doctor shopping' and S8 drug abuse have been it raised it was incumbent upon Dr Thomas to cease prescribing any opioids to this patient until and unless Dr Thomas could be assured that the suspicions were groundless. To continue prescribing morphine to this patient without establishing that he (sic) was not drug dependent simply support his (sic) dependence.' Dr Patterson also highlighted a period when the maximum morphine dosage limit was exceeded. 28. Patient F (man, born 1969). The patient was on long-term oxycodone (originally prescribed in Queensland) for chronic back pain and ankle pain from injuries sustained in 1998. Again the general criticisms are similar to those made in relation to the other patients. This was another instance where maximum morphine dosage limits were exceeded. 29. All of the above cases involved patients with circumstances that would most likely have revealed a history of drug dependence had a clinical history been taken and appropriate examinations occurred. They also involved patients whose subsequent frequency of need for medications might have suggested a drug dependent history. 30. Patient G (man, born 1969). This case stands apart from the cases referred to above. Patient G was a friend of Dr Thomas. He is a doctor (paediatrician). Patient G had a significant history of adverse medical conditions. As relevant to this matter, one of them was erectile dysfunction and primary infertility deriving from childhood congenital conditions and subsequent operations. Dr Thomas prescribed him testosterone undecanoate on two occasions (17 December 2010 and 18 April 2011). 31. Dr Patterson found no evidence that Dr Thomas had conducted an appropriate assessment of the patient before prescribing testosterone (such as a general physical examination with particular focus on the endocrine and genitourinary systems, relevant laboratory tests including as to sex hormone levels). Further he should have referred the patient, after the tests, to a specialist for review (an endocrinologist). 32. Dr Thomas had recorded a diagnosis of hypogonadism, but Dr Patterson observed that there was no basis in the medical records for that diagnosis. 33. There was an endocrinology specialist's report in the clinical records, but it was not clear how it had been obtained, it appeared mainly to be concerned with another condition of the patient, diabetes, and to the action plan that it did contain (mentioning a number of blood tests to be performed) was not followed up. 34. Dr Patterson was also very critical of the dosage of testosterone prescribed. Over the two attendances (six months apart) the amount prescribed (to be administered by periodic injection) was sufficient for two years. He said: 'In total, sufficient testosterone for two years' treatment was prescribed by Dr Thomas, a quantity which is grossly inappropriate.' 35. Though there were only two consultations, they were at different practice locations, and Dr Patterson repeated his criticism of the lack of formal recordkeeping linkages. 36. Explanations for the Conduct. In his statement filed 26 February 2015, Dr Thomas gave explanations for his conduct, while not denying Dr Patterson's overall criticisms. 37. In relation to Patient A, he explained that he had retained her services after he took over the Windsor practice. He referred to her social history, and saw it as tragic. She had had a child to another patient, and they remained on good terms, though no longer living together. He said he knew that she had an adverse history of drug use. He explained his prescription of oxycodone as a means of treating her arthritis and other pain. He knew she had been in an OTP 'from time to time'. 38. He accepted that he failed to maintain proper professional and objective boundaries. He spoke of her admiration for the way she cared for others. He questioned the accuracy of some of the records of his prescribing, and questioned suggestions that Patient A might have used blank prescription pads to obtain prescriptions. 39. In the case of Patient B, he referred to that patient's personal history and the degree of his sickness from cancer. He questioned the accuracy of two of the prescription records. 40. In the case of Patient G, he explained his family and friendship connection to the patient, a doctor, who came from India to work in Australia in 2009. He said that he ordered 'some pathology' and 'confirmed a diagnosis of diabetes'. He said that he referred him to the endocrinologist who report appeared in the clinical records (Dr Swaraj). He accepted that he should have followed up on Dr Swaraj's suggested plan. In response to the criticism of the quantity of testosterone prescribed, he explained the large further prescription of 18 April 2011 as having as it context the fact that the patient was travelling back to India and was uncertain of his return date: 'He wanted a sufficient supply of the medication when away and was concerned about the quality of the medication in India.' 41. He accepted the criticisms made by Dr Patterson of his professional conduct in this case. He said that the personal relationship impacted on his approach, and he felt 'extremely sorry for him'. 42. In his statement he referred to the lessons he had learnt from the investigation conducted by the PSU. He said that despite his years in practice, he did not have enough knowledge and skill to deal with drug dependent patients. He was not 'up to date' with the rules as to prescribing authorities, or how to access information on these patients. 43. He referred to his personal ill health during 2014 as an explanation for his not being able in the period since the suspension to undertake continuing professional development at the level contemplated by the conditions. 44. He referred to other responses he had made to the criticisms of his conduct that led to the imposition of conditions. He had changed the practice software from 'Medical Director' to 'Best Practice'. But that 'despite his best efforts' the patient record cannot be shared between the four practices. He referred to the placement of notices in this practices as to prescribing of S8 and S4D medications. These notices are on notice boards and the like and state that 'No Dependence Drugs will be Prescribed to New Patients'. They go on to refer to examples, and state that 'other S8 medications are subject to the dr's discretion'. He asserted that these notices had a positive effect in reducing the number of patients attending 'for the purpose of seeking a prescription for S8 and S4D medication'. 45. He made general statements as to his commitment to ethical practice, and stated that he was aware of an off campus program offered by Monash University, that covered addiction assessment, issues in general practice prescribing, and medical ethics. 46. It will be apparent from the material so far canvassed that Dr Thomas has taken no significant action to address the personal deficiencies that gave rise to the imposition of conditions on his registration as from 31 January 2013. 47. He is operating four medical practices of some scale. The statistics he gave as to his time commitments to the practices, coupled with the spread of distance between the four practices, suggested to us that Dr Thomas is carrying a very heavy work load. 48. Dr Thomas has, we accept, not been the subject of any further complaint since the restriction on his prescribing authority was imposed. But he has not taken any time out to re-educate himself as to the proper approach to the management of drug dependent patients. 49. At hearing he stated that he had 'no clue' that he needed permission from the PSU (i.e. the authority required under s 129 of the PGTA) to prescribe S8 and S4D medications. He saw himself as influenced in his practices by the dearth of pain management specialists in the Windsor region, long waiting times and his empathy for the plight of poor patients who he had worked around for most of his career (in India, outback Australia and now in these practices). 50. He accepted now that he should keep proper records, and be careful to undertake full checks, history and present physical, with new patients, and make appropriate request for pathology reports and appropriate referrals to specialists. 51. He gave short explanations in his evidence in chief in relation to the circumstances of each of Patients A to G. He stated that he would never now treat a person that had the relationships to him seen in the case of Patients A, B and G. 52. In the case of Patient C, he said he depended on his mother (also a patient) to ensure that the medications were properly administered. In the case of Patient D, he took what she said that she was 'travelling through' and needed to top up her prescriptions 'at face value'. Patient D and Patient E had come in together, they had both said they were from Darwin and 'travelling through'. 53. He felt in the case of Patient G he was doing a favour for a friend, who might have found it embarrassing to discuss his condition with a stranger or a doctor he did not know. 54. As to the steps he has taken to improve his professional knowledge, he said that he had made a phone call to the Parramatta Opiate Program with a dummy patient scenario, had undertaken on line research, and now was much more aware of the extent to which patients will go in saying that they are suffering from pain in order to get medications. 55. As to any more formal education he said that has had discussions with colleagues, and was happy to undertake any professional education suggested. 56. He was cross examined in relation to the following: his professional reading since January 2013 in relation to the issues that had arisen; his other professional education steps; obtaining further understanding of pain management and treatments; his understanding of professional boundaries, as they apply to people in relationships to him such as friendship, family or employment; his record keeping practices, computer arrangements, and record sharing capabilities; the notices now placed in his practices re new patients and medications. 57. In relation to Dr Patterson's assessment, he acknowledged that his prescribing practices where they involved accumulation or combination had properly been described as reckless. He accepted that in the case of several of the patients, Dr Patterson had referred to possible 'fatal outcomes' of his approach to prescribing. He accepted the criticism. 58. There was no serious contest by Dr Thomas in his written statement or in his evidence at hearing over the conclusions reached by Dr Patterson. Dr Patterson had been briefed with a large amount of documentary material, primarily the clinical records and the prescription records. He also had the record of interview, and the reasons that gave rise to the imposition of conditions on 31 January 2013. 59. Dr Patterson found no evidence in the clinical records of any attempt by Dr Thomas to compile history and undertake appropriate examinations, tests and referrals in relation to first presentations by Patients A to F. All, it transpired, had drug dependence histories, and some had been, or were to become, participants in OTPs. Dr Patterson was careful in not offering a finding on the basis of the information briefed that he did not undertake these steps. In his evidence to the Tribunal Dr Thomas made some references to being aware of Patient A's and Patient B's history before treating them, but there is no indication of that kind with respect to the other patients, apart possibly from his friend Patient G. In any case there was no evidence from him that any of them were the subject of physical examinations of significance, tests or referrals (apart from the partial referral said to have occurred in relation to Patient G). 60. The professional members of the Tribunal questioned him in relation his understanding of when a S8 or S4D authority must be obtained, the distinction between oral and intravenous prescribing, when continuing prescribing of oral S8 medications is justified, when oral medications timetable should be reviewed, treatment by medication of anxiety disorder, withdrawal effects of stopping S8s, what steps to take if unfamiliar with those effects in respect of the contemplated medication. The lay member questioned him as to conflict of interest issues. The presiding member questioned him as to how he went about advising the doctors in the practices of the restrictions that had been imposed, and the practice protocols he said he now had in place. Findings as to Conduct 1. The failures identified by Dr Patterson, and substantially admitted without demur by Dr Thomas, are, in our opinion, of the most serious kind, and warrant a finding of professional misconduct. He has engaged in unsatisfactory professional conduct, falling into the categories identified in the application (i.e. (a), (b) and (l), as set out in s139B(1)) of a sufficiently serious nature to justify suspension or cancellation of his registration. The Appropriate Order 1. As previously noted, the area of contest in the case is the appropriate order. Disciplinary orders have as their primary objective the protection of the public from incompetent, irresponsible and unsafe practice of medicine. They also serve as markers to the practising profession as to the consequences that may flow from failures to adhere to professional standards so grave as to constitute unsatisfactory professional conduct or professional misconduct. They serve to promote public confidence in the high standards of medical practitioners. See generally, Prakash v HCCC [2006] NSWCA 153 per Basten JA at [91]; and further, the summary in HCCC v Jamieson [2014] NSWCATOD 56 at [99]. 2. It does not follow from our finding that the conduct was sufficiently serious to justify suspension or cancellation that such a course must be followed. See further, Jamieson at [100]. 3. Dr Thomas submitted in his submissions filed 1 April 2015 that the following orders would be appropriate, and meet satisfactorily the objective of public protection: Reprimand; Continuation in practice subject to 18 conditions. The 18 conditions divide as follows: (1) the three conditions imposed 31 January 2013, varied to refer to any drug of addiction (S8), and 'any other narcotic analgesic'; (2) notices to any practitioners in his practices of these restrictions on his registration; (3) engaging an external IT consultant to advise on record keeping improvements across all four practices; (4) appointment of a practice mentor, reporting arrangements; (5) to develop in consultation with the mentor, a professional development program, and in addition to complete three specified course by 31 December 2015 (RCAGP, Monash University and Opioid Treatment Accreditation Program, or similar, NSW Health); (5) audit of his records management practices. 4. The proposed primary order and the proposed parcel of conditions is very similar to those imposed by the Tribunal in the recent case of HCCC v Ivits [2014] NSWCATOD 148 (10 December 2014). Like the present case, the practitioner had engaged in significant irresponsible prescribing of S8 drugs, involving a greater number of patients, and in quantities in some instances that transcended those seen in this case. Other recent cases with similar features where, arguably, the proven misconduct was greater in scale and frequency than that seen here are Jamieson, cited above; and HCCC v Low [2015] NSWCATOD 18. 5. The major difference between those cases and the present is that the affected practitioner took significant rehabilitative steps between the time conditions were imposed on the registration and the time of the misconduct hearing before the Tribunal. The practitioner's personal testimony in relation to remorse, contrition and recognition of professional error was accepted. The practitioner provided satisfactory evidence of undertaking or completing further professional education. The practitioner positively satisfied the Tribunal that his wrong understandings of what is acceptable practice had been addressed and genuinely discarded. The practitioner usually provided evidence of undergoing counselling, mentoring or receiving professional assistance of some other kind (e.g. psychological, psychiatric), corroborated by detailed written reports and, sometimes, oral testimony from the provider of those services. The practitioner usually supplied testimonials and character references from other members of the profession going to his general qualities, and addressing the failures that had led to the present situation. 6. In each of the cases mentioned, the Tribunal concluded that the practitioner remained fit to continue in practice. 7. Moreover in those cases, the Tribunal noted the opinion that has frequently been expressed in legal and medical practitioner deregistration cases that: 'before a medical practitioner is deregistered or exposed to the sanction that their livelihood being taken away, albeit for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practise' (HCCC v Gorondy-Novak [2011] NSWMT 3 at [200]). 1. This frequently-stated observation has its genesis in Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422 per Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)). The majority said: 'The decisions cited refer to cases where a solicitor who had been on the roll was struck off the roll. When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds (Incorporated Law Institute of New South Wales v. Meagher [1909] HCA 87; (1909) 9 CLR 655 ). (at p422) (emphasis added).' 1. In that case, the appellant, Lenehan, had been refused admission to practise as a solicitor on three occasions over more than ten years, because of misconduct of a financial kind that he had committed, when in his late 20s, as a managing law clerk. He was now aged 45, and his application had again been refused by the admission authority (a panel of judges of the Supreme Court of NSW). He had presented an impressive record of work as a (non-managing) law clerk in the solicitor's office of a major bank, a distinguished record of war service, and significant testimonials as to his character. The material spanned the last 16 years. The majority saw these matters as significant. They upheld the appeal. In re-engaging with the merits of the admission authority's decision, the majority considered that this was permitted by the statutory scheme, as the scope of appeal was unencumbered, and it was therefore open to proceed by way of rehearing. (The dissenting judges, Rich and Starke JJ essentially took the view that an exercise of discretion of the kind under appeal ought only be interfered with if it was manifestly wrong, which they did not think it could be said to be.) 2. In Jamieson, the Tribunal (Justice Wright P, presiding), cited the statement made in Gorondy-Novak and continued at [102]: This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practise - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant or indefinite period. 1. Too great an emphasis on probable permanent unfitness may in the circumstances of a particular case distract the Tribunal from the appropriate exercise of its discretion. It may inhibit the salutary practice seen frequently in professional discipline cases of imposing a relatively short time restriction on the right to reapply for restoration to the register. Such an order admits of the possibility that a deregistered practitioner may, in a relatively short period of time, be able to undertake the rehabilitative steps that address the failures of competence, integrity or character that have led to deregistration. If a deregistered practitioner is able to do this, then the other problem that faces a reregistering authority - the loss of current understanding and knowledge that flows from non-involvement in practice – is less likely to be a significant consideration. 2. In contrast to the cases highlighted for Dr Thomas, the HCCC drew the Tribunal's attention to inappropriate prescribing cases where an order of suspension or cancellation had been made: Spicer v Medical Council, unreported, 19 February 1981 (CA, Hope, Reynolds, Hutley JJA) (upheld tribunal suspension); Re Dr Susan Catchlove and the Medical Practice Act, unreported, 8 February 2006 (NSW MT, Justice Blanch DCCJ, presiding, cancellation); and HCCC v Thomas Fiay, unreported, 31 August 2012 (NSW MT, cancellation). 3. As the HCCC noted in submissions, whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v HCCC [2001] NSWCA 411 at [82] per Sperling AJA. 4. While Dr Thomas stated that he had accepted the errors revealed by his past conduct, we were not satisfied that he truly understood the significance of those errors, the risk they presented to the health and welfare of his patients, and their implications for public safety, and public confidence in the practice of medicine. As we perceived him, he saw the continuation of the conditions preventing him from prescribing S8 and S4D drugs as sufficient to meet the problems that had arisen in his case. 5. The power to prescribe drugs of addiction and restricted substances is heavily limited by law. Dr Thomas had little knowledge of the limits that applied to him. We found his explanation that he was moved by a sense of empathy and concern to alleviate the distress of his patients unconvincing, and in, any case, not acceptable. 6. It lies at the heart of the practice of medicine that the practitioner bring to the consultation a detached and informed mind, and that he or she deal objectively with the condition of the patient, especially a new patient at a first consultation. All of the patients the subject of the complaint started as new patients, as distinct for example from referred or transferring patients. 7. To that end, it will sometimes be necessary to obtain further information, starting with a clinical history, and a direct examination of the patient, and moving to tests and the like. It may be necessary to refer to specialists. These steps would have been well known to a practitioner of Dr Thomas's experience. 8. In our view, the explanation for his uncritical approach to dealing with most of the patients the subject of the complaint lies elsewhere. It is more likely, we think, to have been driven by a desire to build a practice, generate income, and move patients through quickly with a minimum of fuss. As already noted, Dr Thomas was during the years the subject of complaint engaged in practice building in the Windsor region, now to the extent of four practices. 9. We are not satisfied that he has any greater professional knowledge today than he did during that period as to the special matters relevant to the prescribing of S8 and S4D drugs, matters such as dealing with manipulative patients, obtaining proper histories, liaising with OTPs, specific understanding of relevant contraindications, the dangers of combining certain medications, adherence to dosage restrictions, an acceptance of the principle that dosage starting points should usually be at the lower end of the range and movement to the top of the dosage range should only be occur if there is a very sound justification, and the risks of prescribing large quantities in a single prescription. 10. In our view, he has not taken any steps of significance to improve his professional understanding. In our opinion, all that he has done is read relevant Council publications, engage in some unstructured on-line research, and undertake an apparently self-devised dummy patient scenario about which we had no corroborating detail. 11. He has in the intervening period concentrated, as we see it, on practice building. His account of his work hours, when combined with the travel time involved in moving between the Windsor practice and the other practices in a radius of about 25 kms from Windsor, would have left, we think, little or no time to engage in any serious professional education. 12. We also consider it striking that there were no testimonials or character references from peers in the profession attesting to his fitness that addressed the misconduct to which he has admitted. The references provided were, as noted by the HCCC's submissions, brief and minimal; and were, mostly, from doctors belonging to his practices, and could not be seen as made on a detached, arms length basis. This circumstance, together with the very limited attempts at professional education, suggest to us that Dr Thomas had considerable difficulty coming to terms with the misconduct identified by the PSU and later dealt with in Dr Patterson's comprehensive report. 13. We accept that he has put up notices in practices stating that no 'dependence drugs' will be prescribed to new patients at the practice. This, as we see it, is an immature and inappropriate response to the Council's placement of a restrictive condition on Dr Thomas's registration. While it may deter some manipulative patients, it also deters new patients with genuine needs from attending the practice. As we understand the material, there are doctors other than Dr Thomas present at these practices. A new patient may present, and may well have a proper need to be prescribed a S8 drug, after the usual clinical steps have been taken; or there may be a case for a referral to a specialist. A general notice of this kind does not deal with these subtleties of medical practice. Dr Thomas also provided no credible evidence as to attempts made to improve the record keeping practices and the co-ordination of records between different practices. 14. In our view, he also had an unclear understanding of ethical practice boundaries, in particular around treating persons with whom he had significant personal or work relationships that went beyond that of practitioner-patient (i.e. Patients A, B and G). He needs some retraining in this area. We acknowledge in that regard that he has developed a practice standard for his practices that seeks to address that issue. But we were left with concerns as to the depth of his personal understanding of the problem of conflict of interest, and his personal ability to avoid situations of this kind in future. 15. These difficulties in his case became apparent during the proceedings. The written submissions prepared by counsel on his behalf after the close of the proceedings sought, as we see it, to plug a number of these gaps. The proposed conditions covered all of the points mentioned above. 16. In her reply submissions (10 April 2015) counsel for the HCCC submitted that the Tribunal should not have regard to any material in those submissions that involved further evidence. She was referring to evidence that Dr Thomas had attended a rural doctors' network conference; and an (uncorroborated) statement that he has sought some mentoring. We have placed no weight on that information. 17. We were referred to the pp 62 and 63 of the decision in Fiay. The catalogue, set out there, of the practitioner's shortcomings in addressing the circumstances giving rise to the restrictions on his prescribing authority is almost identical to the shortcomings found in Dr Thomas's response in the present case. 18. For example, the Tribunal there referred to the practitioner's lack of insight, and his shallow understanding of the legal requirements concerning S8 drugs. Like that case, Dr Thomas, in answer to questions from the Tribunal, was unable to clearly state the circumstances in which he would need to obtain an authority. There were similar shortcomings in relation to record keeping improvements, and involvement in relevant professional education courses. 19. On the other hand, we acknowledge, that Fiay contained a more serious history of misconduct. There was a greater scale and frequency of wrongful prescribing of drugs of addiction than the present case (27 patients, a wider span of time, many more infringements, voluminous particulars, a number contested). 20. In our view, it is not sufficient to deal with the misconduct found in this case by allowing Dr Thomas to continue in practice, subject to the conditions suggested. We are not satisfied that Dr Thomas has demonstrated, to adopt the words used by the Tribunal in Fiay (at p 63), any real changes to the way he practises which would cause us to conclude that, at the present time, he can be trusted not to engage in similar conduct even with conditions on his registration. 21. Dr Thomas' has belatedly recognised that he needs to engage in a multi-faceted, structured response to the problem of inappropriate prescribing and related concerns to do with record keeping and practice management, and what that says to the community about his understanding of his responsibilities as a medical practitioner. While his career in Australia is relatively recent, he is nevertheless a practitioner of considerable experience. Moreover, he is the leader of a team of doctors and the operator of four practices. We do not consider that he is presently fit to continue in practice. 22. Accordingly, his registration should be cancelled. However, we do not favour a time limit on any reapplication of the degree suggested in the closing submissions of the HCCC (18/24 months). In our view, 12 months is sufficient. It does not follow, of course, that Dr Thomas can expect to be reregistered after the 12 months' period. He must take steps which offer a real assurance that he has rehabilitated sufficient to be regarded as fit to be restored to practice. 23. The usual order for costs is made. Orders The respondent's registration is cancelled pursuant to s 149C(1)(b) of the National Law. This order is to take effect 14 days after the date of publication of these reasons. An application for review of the order pursuant to Division 8 of the National Law may not be made for a further 12 months from the date of commencement of this order. The respondent is to pay the applicant's costs of the proceedings. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 24 June 2015