Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Daly [2015] NSWCATOD 113 Hearing dates: 24, 25, 26 and 27 August 2015 Date of orders: 19 October 2015 Decision date: 19 October 2015 Jurisdiction: Occupational Division Before: Boland J ADCJ (Deputy President) Dr M Higgins (Professional Member) Dr M Jarrett (Professional Member) Ms M Kelly (Lay Member) Decision: 1. Dr Christine Daly (the practitioner) is reprimanded. 2. The Australian Health Practitioner Regulation Agency is requested to record the reprimand and conditions on the practitioner's registration. 3. Conditions are imposed on the practitioner's registration in respect of prescribing Schedule 8 and Schedule 4D drugs. The conditions are critical compliance conditions. 4. The practitioner is to authorise the exchange of information between Medicare Australia and the Council or the Board 5. The practitioner is to appoint a mentor and undergo mentoring by a mentor approved by the Medical Council of NSW or if the practitioner resides in Queensland the Medical Board of Australia. 6. An auditor is appointed to audit the practitioner's medical practice and records. 7. The practitioner may not change her place of practice without prior approval of the Medical Board of Australia. 8. The practitioner must only practise if another general practitioner is on site at the practice. 9. The practitioner is to complete the course "Issues in General Prescribing" provided by Monash University. 10. If the practitioner resides in NSW the appropriate review body if the Medical Council of NSW or if she resides elsewhere in Australia s 125 to s127 of the Health Practitioner Regulation National Law shall apply. 11. The practitioner is to pay the HCCC's costs as agreed and failing agreement liberty to restore before the Tribunal. Catchwords: ADMINISTRATIVE LAW – Health Practitioner National Law 2014 (NSW). Where medical practitioner concedes her conduct in treatment of patients and failure to keep proper records constitutes unsatisfactory professional conduct and professional misconduct. Where practitioner disputes some particulars in the complaint. Whether or not practitioner's registration should be cancelled or suspended and or conditions imposed on her registration. Legislation Cited: Health Practitioner Regulation National Law (NSW) 86a Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2002 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 166 Health Care Complaints Commission v Do NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v King [2013] NSWMT 9 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Ohn v Walton (1995) 36 NSWLR 77 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Spicer v New South Wales Medical Board (unreported NSWCA 3 of 1981 – 19 February 1981) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Christine Daly (Respondent) Representation: Counsel: Mr C O'Donnell (Applicant) Mr C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant (Respondent) File Number(s): 1520027 Publication restriction: An order prohibiting publication of the names of the patients set out in a schedule to the complaint was made on 20 March 2015. Reasons for decision Introduction 1. Dr Christine Daly (the practitioner) is a 59 year old general practitioner who currently practises for limited hours as a self-employed practitioner in a general practice on the Sunshine Coast, Queensland. For approximately 25 years she practised medicine as a sole practitioner at Nowra on the South Coast of NSW. The practitioner has, pending the determination of these disciplinary proceedings, consented to conditions on her registration that preclude her from possessing, prescribing, supplying or administering any drug of addiction listed on Schedule 8 of the Poisons List (NSW) proscribed under the authority of the Poisons and Therapeutic Goods Act 1966 (NSW) or prescribing any restricted substance listed in Schedule 4D of the Poisons and Therapeutic Goods Regulation 2002 (NSW) (Appendix D). 2. On 19 February 2015 the Health Care Complaints Commission (HCCC) referred a complaint about the practitioner to the Tribunal and sought various orders, including an order that the practitioner's registration be cancelled or suspended. At the conclusion of the hearing the HCCC submitted, in the event that the Tribunal determined that the practitioner's registration should not be suspended or cancelled, orders should be made that the practitioner be reprimanded and a number of conditions be imposed on the practitioner's registration. 3. The complaint asserts the practitioner is guilty of unsatisfactory professional conduct under s 139B (1) (a) and/or (l) of the Health Practitioner Regulation National Law 2010 (NSW) (the National Law). Additionally it is asserted that the practitioner is guilty of professional misconduct under s 139E of the National Law. 4. The gravamen of the complaint is that the practitioner's conduct in the care of 12 identified patients did not accord with the level of knowledge, skill or judgment reasonably expected of a practitioner of an equivalent level of training and expertise and/or that she engaged in improper or unethical conduct in the practice, or purported practice of medicine. For the majority of these patients, in an identified period or periods, the practitioner's prescribing is asserted to be inappropriate. It is also asserted the practitioner failed to obtain authorities before prescribing Schedule 8 drugs for nine patients, in accordance with a condition on her registration, and that her record keeping in respect of 14 patients did not comply with the relevant regulation in force at the relevant time. 5. The complaint asserts, based on the particulars generally described above, that the practitioner's conduct constitutes professional misconduct. 6. In a statement dated 24 July 2015 the practitioner concedes the majority of the particulars in the complaint. Significantly, she admits her conduct constituted unsatisfactory professional conduct and professional misconduct. 7. Among the concessions made by the practitioner is a concession that all of her records for the relevant patients failed to comply with the regulations and were significantly deficient. She candidly described her records for these patients as "woeful". She also admitted that she had failed to obtain the relevant authorities for the S 8 drugs she prescribed for the nine named patients. 8. Thus, the Tribunal was required to make findings only in respect of a handful of particulars that remained in dispute at the commencement of the hearing. Those particulars, the evidence in support of them, and our findings are set out later in these reasons. The Tribunal's primary focus was on the protective orders it should make. 9. While the practitioner readily conceded that her right to continue in practice should be constrained by conditions including a restriction on her S 8 prescribing, that she be required to engage in a mentoring relationship with a suitable practitioner, and work in a group practice, she did not concede her registration should be cancelled or suspended, although it was not disputed we could, if we found it appropriate, do so. 10. After reviewing all of the evidence and taking into account the parties' submissions we were independently satisfied that the practitioner's conduct constituted both unsatisfactory professional conduct and professional misconduct. We concluded that it was appropriate that the practitioner be reprimanded, and that conditions are placed on her registration. These are our reasons for the orders made. A one or two stage hearing 1. These proceedings were originally listed for seven days. Following a case conference, as ordered, the Tribunal was provided with a Statement of Facts and a general outline of the orders proposed by the HCCC. The practitioner filed a statement in which she conceded the complaints as pleaded, and the vast majority of the particulars pleaded in respect of each complaint. The parties agreed it was not necessary for the Tribunal to first determine the matters the subject of the complaint, and then conduct a separate hearing about the appropriate protective orders. Issues in dispute 1. The practitioner disputes that: 1. she prescribed Oxycodone for a patient, (Patient A) at a strength of 30mg on four specified dates contrary to the authority granted by the Director General of the NSW Ministry of Health (Complaint 1, particular 2); 2. she failed to properly assess Patient B in that she failed to examine or take a detailed history from the patient when the patient developed diarrhoea for over 8 days in November 2012; 3. while she prescribed two benzodiazepines for Patient C for a non- therapeutic purpose and without exercising appropriate medical judgment, she does not concede that she did so without regular assessment of the patient's physical and mental state. (Complaint 1, particular 4(c); 4. she prescribed Oxycodone for Patient C for a non-therapeutic purpose, without conducting regular assessment of the patient's mental and physical state, without appropriate clinical management and where the dose was in excess of recognised therapeutic standards as to what was medically appropriate (Complaint 1, particular 6 (a) (c) (d) and (e)); 5. she prescribed benzodiazepines for Patient H when the practitioner was advised by the patient's specialist that the patient should not be prescribed more than 20mg per night and without appropriate clinical management or review of Patient H's ongoing use of the medication after March 2013 (Complaint 1, particular 11 (e) and (f)); 6. she prescribed paracetamol 450mg plus codeine phosphate 30mg and doxyamine succinate 5mg in circumstances where she failed to conduct appropriate ongoing assessment of the patient's cervical spine condition, where she failed to make an appropriate diagnosis of the patient's spinal condition, and in circumstances where she should have sought a specialist opinion at an appropriate state in relation to possible surgical interventions.(Complaint 1, particular 13(a) (b) and (c). 7. she prescribed benzodiazepines for Patient J in quantities which were in excess of recognised therapeutic standards as to what was medically appropriate and in excess of dosage recommended by the specialist (Complaint 1, particular 14); 8. she prescribed Oxycodone for Patient J in quantities which were in excess of recognised therapeutic standards as to what was medically appropriate (Complaint 1, particular 15); 1. Several particulars of complaint 1, namely particulars 1(a),15, 19 and 20 which the practitioner disputed, were not pressed by the HCCC. During her cross-examination the practitioner conceded her prescribing of Codalgin Forte for Patient A was not appropriate. 2. Without objection from the practitioner, we permitted the HCCC to amend several typographical errors in the complaint in respect of the initial used to identify a particular patient. Background 1. The practitioner, who was born in 1956, graduated from the University of Sydney in 1979 with an MB.BS. She was first registered in NSW on 20 December 1979. 2. After working as an intern and junior resident medical officer at Wollongong Hospital between 1979 and 1983 the practitioner commenced practice as a general practitioner in practice with another practitioner between 1982 and 1983. Thereafter, the practitioner engaged in practice on the south coast of NSW as a general practitioner. Between 1983 to 2008 she worked as a visiting medical officer at Nowra Community Hospital and engaged in a similar role at Shoalhaven District Memorial Hospital from 1985 to 1987. 3. From 1988 to September 2013 the practitioner engaged in practice as a solo general practitioner in Nowra. 4. In October 2013 the practitioner moved to Queensland and did not practise for a period of 17 months. 5. In March 2015 the practitioner commenced working as a self-employed general practitioner, on a part-time basis, at a medical centre in Maroochydore, Queensland. She remains in that employment. 6. In 1991, following a complaint made about her prescribing practices, the Director-General NSW Health advised the practitioner conditions had been placed, with her consent, on her registration. She was precluded from prescribing any drug of addiction without the prior authority of the Director-General. Those conditions were confirmed by delegates of the then Medical Board of NSW (the Board) in 1993 but with a recommendation they be reviewed after 12 months. 7. By letter dated 6 February 1993 the practitioner wrote to the Complaints Unit, NSW Health explaining the difficulties she experienced in treating some of her cohort of patients, and her vulnerability when tired and pregnant with her fourth child in 1990. She acknowledged her past prescribing had been "wrong and irresponsible". She went on to explain: I believe I am wiser, in control, responsible and totally aware of the reasons to remain and importance of remaining with the Department of Health rules for prescribing. I feel ready to have the restrictions on my prescribing lifted but am happy to have them remain in process if the Unit feels best. I am guilty of past malpractice, I have learnt from my mistakes, my overall situation and attitude has changed positively and I feel I no longer have a problem. 1. In 1994 the Board's delegates expressed some concern about the practitioner's workload and determined the conditions should be reviewed in a further 12 months. 2. In 1995 the Board's delegates, having interviewed the practitioner, said that they had explained to her that she had been treated on the impairment path (rather than the conduct pathway) because it was mistakenly thought she may have been self-administering opiates, but any further infringements of the Poisons Act would be treated as a disciplinary matter. The delegates informed the practitioner they would recommend to the Board that her opiate prescribing restrictions be removed. 3. On 5 December 2012 the practitioner wrote to the Pharmaceutical Service Unit, Health Department (PSU) requesting that the restrictions on her prescribing should be removed. This request triggered an investigation by the PSU who contacted 12 pharmacies in the Nowra area to obtain records of the practitioner's prescribing. That investigation ultimately led to these proceedings. The relevant law 1. Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and … (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and … (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186). The onus or burden of proof 1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Unsatisfactory professional conduct and professional misconduct 1. Complaint One asserts the practitioner is guilty of unsatisfactory professional conduct as set out in s 139B(1) (a) and (l) of the National Law. 2. The relevant provisions of that section for the purposes of this matter are follows: "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following— … (a) 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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint 2 asserts the practitioner is guilty of professional misconduct under s 139E of the National Law. That section provides as follows: 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. The expert evidence Dr Harry Nespolon 1. Dr Nespolon was retained by the HCCC to provide expert evidence in this matter. Dr Nespolon's curriculum vitae was provided to us. He holds the degrees of BM.BS.BEc LL.B (Hons) and MBA. He holds a DipRACOG, and is a FRACGP, FACLM and FAICD. His expertise to provide his reports was not subject to challenge. We accept Dr Nespolon is eminently qualified as an expert in this matter in accordance with the Tribunal's procedural direction "Expert Witnesses". 2. Dr Nespolon prepared his first report (undated and marked "draft") in response to a request of the HCCC dated 7 January 2014. (the first report). He prepared a second report, also undated, comprising some 63 pages following a request from the HCCC dated 8 January 2014 (the second report). The first and second reports are substantially identical. 3. Following a further letter from the HCCC dated 27 February 2014 Dr Nespolon produced a third report (also undated) comprising 64 pages (the third report). 4. After receipt of the practitioner's statement in which she conceded the majority of the particulars in the complaint, Dr Nespolon was asked by the HCCC to provide a supplementary report. His supplementary report and oral evidence addressed those particulars disputed by the practitioner in her statement. 5. It is unnecessary that we refer in detail to any of Dr Nespolon's reports except the supplementary report (and his oral evidence). In short, Dr Nespolon was critical of the practitioner's prescribing finding in the majority of particulars alleged that the practitioner's prescribing conduct fell below the standard expected of a practitioner of an equivalent level of training and experience and was significantly below the standard. In most instances the practitioner's conduct invited Dr Nespolon's strong criticism. Dr Nespolon found significant deficiencies in the practitioner's record keeping, a finding we note the practitioner readily conceded to be the case. We accept Dr Nespolon's criticisms of the practitioner's admitted prescribing and record keeping complaints are well founded. 6. We will discuss Dr Nespolon's supplementary report and oral evidence when dealing with each contested complaint. Emeritus Professor Ian W Webster AO 1. The practitioner relied on a letter provided by Emeritus Professor Ian W Webster AO dated 7 August 2015 prepared in response to a request from the practitioner's solicitors. Professor Webster also gave extensive oral evidence before us. 2. In his letter Professor Webster outlined his academic qualifications, and his teaching appointments, including his appointment as Foundation Professor of Community Medicine at the University of NSW in 1975. He has also held appointments at Monash, Sheffield, Sydney and New South Wales universities. For 35 to 40 years he ran a free medical clinic for homeless people in Sydney at the Matthew Talbot Hostel for the Homeless, Woolloomooloo and at the Exodus Foundation, Ashfield. Since his retirement from Liverpool Hospital in 2004, where he was Clinical Dean for the UNSW, he has volunteered to work on a part-time basis in a rural area of need. 3. Professor Webster explains his current role in the Shoalhaven as follows: In visiting the Shoalhaven area my intention is to provide support to general practitioners, other clinicians, public sector and non-government services and agencies in managing the problems of alcohol and substance misuse. The patients referred to me are predominantly patients with complex co-morbidities – commonly centering on unremitting pain. As a consequence I am regarded the local health service area and beyond as a pain specialist. This, too, was my experience when working in a public (Drug and Alcohol) out-patient clinic at Liverpool Hospital. 1. Professor Webster sets out in his report his relationship with the practitioner noting that his knowledge of her was limited to her referrals of patients to him and professional contact through letters of referral and an occasional telephone call. 2. In his letter Professor Webster notes that the practitioner had a load of patients "suffering essentially intractable and irreversible problems". He recorded it was of concern that he had not been aware that the practitioner had conditions on her registration, But he went on to opine: Nowra was a medical environment in which most (I believe all) practices were not bulk-billing at the time. The general understanding in the community was that "doctors' lists" were closed. This meant that poor patients, as were the patients I shared with [the practitioner], had difficulty gaining access to GP's. Their problems of co-existing mental health and drug and alcohol problems (commonly with chronic pain) are "no go" areas for many doctors. Therefore patients struggled to find doctors prepared to take on their medical care. The fact that [the practitioner] continued to see these patients, when others were not prepared to do so, is a positive and laudable aspect of her character. I know this view is held by at least one other specialist physician; and probably others and by the staff of the Drug and Alcohol Service. 1. Professor Webster fulsomely acknowledged the merit of the practitioner's actions in providing care "for some of our most marginalised people" without discrimination. He surmised the practitioner's motivation was not to earn a high income, or high social status, but to provide care to patients with high medical and social needs. 2. In his letter Professor Webster sets out a thoughtful and informed commentary on benzodiazepine prescribing noting that dependence on these drugs is endemic in marginalised populations and amongst those with long histories of health problems. 3. In commenting on the language used in the particulars of the complaint, Professor Webster opined: Reference is frequently made to "for a non-therapeutic purpose" and "in excess of therapeutic standards". Among patients with long-term established benzodiazepine dependence there are no therapeutic guidelines apart from regimens for withdrawal/detoxification. I have explained above that this often fails even with excellent clinical and psychological management. The 'therapeutic guidelines' which do exist are for short-term prescribing. Therapeutic guidelines do not exist for people with co-existing mental health, drug and alcohol and physical health problems. 1. In his oral evidence Professor Webster discussed the subtle difference between addiction and dependence that many of the practitioner's patients suffered. In this evidence he referred back to material in his letter particularly by reference to the definition of "a drug dependent person" in the S 8 authorisation form, which refers to a patient having "an overwhelming desire" for the drug. He noted many patients become psychologically dependent on a drug, or may become neuro-biologically tolerant to a drug, and/or need a drug to control pain, but do not have an overpowering desire for continuation of the treatment. In fact, he opines, for many it is quite the opposite, that is, the person wants to stop taking the drug. In his letter he says "Thus a person can be dependent on a drug but not have an overpowering desire for continuation of the drug". 2. Professor Webster explained that the many of the patients who the practitioner treated are known colloquially by the profession as "heart sink" patients. This is because patients, with co-morbidities such as many of those seen by the practitioner, cause a doctor's heart to sink when they present at a practitioner's surgery. Such patients he said are notoriously difficult to treat and manage. 3. In a very balanced way, Professor Webster, while acknowledging the commendable aspects of the practitioner's motivation in treating her patients, also freely acknowledged that he did not condone the practitioner's prescribing practices. He noted the importance of a practitioner, in the practitioner's position in Nowra, having peer support to discuss and seek advice about difficult patients such a number of those who feature in this complaint. 4. Professor Webster readily accepted the proposition that a solo practitioner's conduct, as any other practitioner's conduct, must not fall below accepted professional standards. 5. We found Professor Webster's evidence balanced, compelling and insightful. We had no hesitation in accepting his evidence in its entirety. Parts of his evidence were particularly helpful in our determination of appropriate protective orders and we will refer to it again in that context. His evidence cogently highlighted to us the dangers a very well-motivated practitioner may fall into if that practitioner becomes isolated from his or her peers when treating patients such as those attending the practitioner. The disputed particulars Particular 2 The practitioner prescribed Oxycodone for Patient A, at a strength of 30mg as set out in Schedule A on 15 June 2012, 5 September 2012, 13 November 2012 and 4 January 2013 contrary to the authority granted by the Director General of NSW Ministry of Health on 24 February 2012 under section 29 of the Poisons and Therapeutic Goods Act 1966 ("PTGA") 1. In his supplementary report, Dr Nespolon notes that the relevant authority was issued on 15 February 2012 and was in effect until 1 February 2013. He explains that, from the information presented, the practitioner prescribed 520 tablets between the period 15 June 2012 and 4 April 2013. The crux of Dr Nespolon's conclusion is that although the practitioner was authorised to prescribe Oxycodone she did so in excess of her authority. 2. In his first report Dr Nespolon summarises his opinion of the practitioner's prescribing for Patient A by reference not only to Oxycodone, both 10mg and 30mg, but by reference to other drugs (endone, paracetamol 500mg and paracetamol 500mg + codeine phosphate 30mg. He opines that the total prescribing fell significantly below the standard expected of a practitioner of this practitioner's skill and experience, but her conduct did not attract his strong criticism. 3. Subsequently, Dr Nespolon was asked by the HCCC to respond to the following question: Please provide your opinion on the appropriateness of [the practitioner's] prescribing of these individual S8 and S4 drugs for this patient, including dosage, frequency, duration of prescribing and contraindications. 1. In the table annexed to his second report Dr Nespolon recorded that Dr Needham (a specialist who treated Patient A) had "on several occasions agreed that the dose of Oxycontin and Endone was appropriate". However, he then confirmed his opinion in identical terms to that set out in the first report. 2. The identical question, response and opinion is set out in Dr Nespolon's third report. 3. The practitioner addresses this issue at [98] to [103] of her statement. After setting out details of her authority, and prescriptions written the practitioner explains "Patient B's oxycodone was dispensed at a rate that allowed him to take a larger amount that I prescribed. I was unaware of this at the time". 4. In her oral evidence the practitioner explained that she gave a patient a prescription and repeats, with the prescription marked "not to be dispensed for 20 days". Her explanation about why the patient obtained a larger amount was that a pharmacist had dispensed the drug at a period earlier than the 20 day period resulting in the patient obtaining the drug in a shorter period than she had intended. In other words, the practitioner relied on the pharmacist "policing" the prescription to ensure it was not dispensed earlier than 20 days after the last dispensing. 5. In the submissions made on behalf of the practitioner it is asserted that the practitioner's authority was for two forms of Oxycodone (sustained release and Oxycodone 5mg tablets). A copy of the PSU authority deals with an application made by the practitioner on 15 February 2012, and as recorded by Dr Nespolon, is noted to be valid until 1 February 2013. It is submitted that the particular as pleaded is deficient, in that although it refers to prescribing of Oxycodone at a strength of 30mg, the schedule to the complaint conflates both authorities. 6. We are satisfied that the practitioner's conduct in devolving responsibility to a pharmacist or pharmacists to ensure the patient did not receive Oxycodone earlier than intended and thus able to receive a quantity in excess of the therapeutic dose and outside the authority was poor practice. However, we accept the submissions made on behalf of the practitioner that the particular as pleaded is not made out because of what may be described as a "technical" point. However, it is relevant that we note that the practitioner's own evidence revealed an underlying poor practice in inappropriate reliance on a dispensing pharmacist. Particular 3 The practitioner failed to appropriately assess Patient B in that she failed to examine or take a detailed history from the patient when Patient B developed diarrhoea for over 8 days in November 2012 1. Although initially conceding this particular, the practitioner through her solicitors withdrew the concession. In her oral evidence the practitioner explained that the patient, an elderly woman and long term patient, who lived opposite her surgery, had initially presented with an upper respiratory tract infection and did not at that time disclose that she also had diarrhoea. The practitioner asserted that she had carried out an adequate clinical examination, but had failed to record this in her notes. 2. In his oral evidence Dr Nespolon explained there is no corroborating evidence of the practitioner's assertions in her clinical notes. However, that evidence was given without hearing the oral evidence of the practitioner in respect of this particular. 3. We accept Dr Nespolon is correct when he says that the notes do not corroborate the practitioner's statement. However, we accept the practitioner's evidence she did examine this patient. While we are satisfied that her overall assessment of this elderly and vulnerable patient was inadequate, we are not satisfied that the particular which is limited to "examine" and "taking of an adequate history" is established. We note that the practitioner failed to order any tests to establish the patient's electrolyte and creatinine levels, but the particular does not assert failure to carry out relevant tests. Particular 4 (c) The practitioner prescribed Benzodiazepines (Diazepam and Temazepam) for Patient C as set out in the Schedule to the Complaint: (c) without conducting regular assessment of the patient's physical and mental state 1. The practitioner first saw this patient in 2002. He was then aged 38 years and had a history of drug and alcohol abuse. The practitioner asserts at the time she was treating this patient she was not aware he had been on a methadone program. The patient complained of back pain from an L4/5 lesion and was under the care of a pain specialist, Dr Needham. At the time the practitioner first saw this patient he had already been prescribed Diazepam and gave a history of involvement in a motor vehicle accident when aged 20. 2. In her statement the practitioner says: From the time I first saw Patient C, I continued prescribing Diazepam for Patient C to help manage his anxiety and alcohol withdrawal. I, and, on occasion, my locum liaised with Drug and Alcohol from time to time, with the aim being to cease Patient C's use of Diazepam. 1. The practitioner goes on to note that this patient had multiple admissions to hospital for depression and suicidal thoughts and was usually discharged on a dose of Diazepam 5mg 6 per day. She notes that she prescribed Oxycontin 15mg b.d. and that the patient was commenced on this medication by Dr Needham in March 2009. She also notes that the patient was, in July 2012, under the care of the Drug and Alcohol Service to manage his withdrawal from alcohol and Valium. 2. At [141] of her statement the practitioner explains: I reviewed Patient C regularly and I spent a lot of time counselling him. He was usually seen weekly and my consultations with him were not brief. I spent time at these consultations discussing Patient C's mental state, his ongoing psychotherapy, and lifestyle and social issues. I also addressed Patient C's other medical issues during these consultations. 1. In answer to questions posed by counsel for the HCCC, the practitioner acknowledged she knew the patient abused alcohol and cannabis and was positive for Hepatitis C. She agreed in retrospect there were signs which should have alerted her to prior drug use, or that the patient had been on a methadone program. 2. In his supplementary report Dr Nespolon states he has reviewed the practitioner's notes for the relevant period and that they contain a number of discharge summaries, and a "perfunctory Mental Health Care plan". He also refers to "Enhanced Primary Care plans" and suggests that it appears these were created by the practitioner's practice nurse. He also notes the brevity of the practitioner's notes and that many appointments are 5 minute appointments. He further records on 4 June 2012 the notes disclose that the practitioner conducted a physical examination of the patient's abdomen. He concludes his comments as follows: There is predominately no assessment or inadequate assessment recorded of the patient's mental or physical state. 1. Dr Nespolon's earlier reports essentially repeat the information contained in the fourth report. 2. It is not disputed by the practitioner that her records during the relevant period were inadequate. There is therefore no, or at best, little corroborative evidence of her assertions that she did conduct physical and mental examinations of this difficult patient with complex needs. But she contends in her statement and said in her oral evidence that she spent extensive time counselling this patient and "probably" assessed his mental well being. 3. The particular relates to assessment of the patient's physical and mental state. While we accept this patient fell within the cohort of very difficult patients described by Professor Webster, we are not satisfied that the practitioner's explanation that she counselled the patient addresses the particular which is directed to assessment of the patient's mental state. It is clear that the practitioner did not use any of the well-recognised mental health assessment tools to examine his mental state. It is unfortunate that the practitioner was working in isolation and did not involve drug and alcohol services to support her care of this patient at an earlier period of time. We are satisfied that this particular is established. Particular 6 (a) (c) (d) and (e) The practitioner prescribed Oxycodone, a Schedule 8 drug of addiction for Patient C as set out in Schedule C to the complaint (a) for a non therapeutic purpose; without conducting regular assessment of the patient's physical and mental state (c), without appropriate clinical management (d) and where the quantities of medication prescribed was in excess of recognised therapeutic standards as to what was medically appropriate 1. The practitioner asserts Dr Nespolon has miscalculated the number of scripts for Valium and Oxycontin she prescribed for the patient between 20 June 2012 and 14 January 2013, a period of 208 days. The practitioner sets out details of prescribing for this patient and says she found him a very difficult patient to manage, that she reviewed Patient C regularly and, as earlier noted, spent a lot of time counselling him. She also states that at regular consultations, often weekly, she discussed with the patient his mental state, psychotherapy, and lifestyle and social issues. 2. At paragraph 142 and 143 of her statement the practitioner makes two frank concessions as follows: I concede that I should have sought a higher level of support from Drug and Alcohol Services in Patient C's case, and I should have sought it much earlier. Patient C should have been under direct care of Professor Webster. I was not succeeding in managing Patient C's use of medication. 1. In her oral evidence the practitioner explained that this case provided an example of where a GP should appropriately challenge or test a specialist's medication prescribing recommendation. She also related referring the patient to Professor Webster on 28 March 2013 and stated that she did not see the patient after 23 April 2013. 2. In his supplementary report Dr Nespolon is, unsurprisingly, critical of the lack of corroboration of the practitioner's statements about examination of this patient in her clinical notes. He notes that Dr Needham said the patient should be using Oxycodone 30mgs per day to manage pain and in a letter dated 27 September 2010 suggested the prescribing should be "in the short term". Dr Nespolon notes from his examination of the records the practitioner prescribed Oxycodone on average 45mgs per day. He also notes "The patient continued to receive oxycodone for an extended period". 3. The practitioner's evidence in [137] to [139] of her statement is somewhat confusing and difficult to understand referring as it does to the patient being "her" not "him" and an assertion that a script was kept on the patient's file to remind her that she had discussed reducing the patient's dose of Oxycodone from 15mg to 10mg. 4. We accept that the Schedule to the complaint discloses 5 prescriptions of Oxycodone 15mg or 504 tablets prescribed between 20 June 2012 and 14 January 2013. Dr Nespolon in the schedule to his third report states the prescribing is at the rate of about 2.5 tablets per day, and this is more than the recommended 2 tablets per day. 5. In his supplementary report Dr Nespolon notes that the practitioner's clinical records do not disclose that the Oxycodone was being prescribed for analgesic purposes. 6. It is clear from the practitioner's statement and her records that Patient C was a vulnerable patient with complex needs, and that he suffered pain from an L4/5 injury. We accept the practitioner's evidence, although not recorded in her notes, that drugs particularised were prescribed for the patient's back pain. Such a finding is consistent with Dr Needham's report. We also accept Patient C fits the profile of the type of patient with complex needs and problems described by Professor Webster. We have no difficulty in accepting the practitioner's statement this man was a difficult patient to treat, and her concession that she should have referred him earlier to a drug and alcohol service. 7. If the practitioner's records had been properly kept those records would have corroborated her oral evidence and statement. That is, of course, not the case. However, we are not satisfied the prescribing in this case was for a non therapeutic purpose as asserted in particular (a), or without appropriately conducting an examination of the patient's physical state during the relatively short period in question, or without appropriate clinical management (c) and (d). In this respect we accept Professor Webster evidence in his report about examination of such patients, and what is therapeutic for a patient such as Patient C. We also take into account several appropriate concessions made by Dr Nespolon in his oral evidence. That evidence was that some of the patients the subject of the complaint were difficult and complex patients to treat and manage, that drug and alcohol services at the relevant time in the Nowra area were limited, and that many doctors would not be prepared to treat such patients. 8. Consistent with our earlier findings about failure to use any well recognised mental assessment tools, we find particular (b) is established in part. 9. Further, given the practitioner's concessions in her statement and Dr Nespolon's opinion about the quantity of Oxycodone (which is consistent with Schedule C), we are satisfied that particular (e) is established. Particular 11 (e) and (f) The practitioner prescribed a benzodiazepine (Temazepam and Diazepam) a Schedule 4D medication, to Patient H as set out in the Schedule H to the complaint (e) in circumstances where the practitioner was advised by the specialist that the patient should not be prescribed more than 20mg per night; (f) without appropriate clinical management or review of Patient H's ongoing use of the medication after 28 March 2015 1. In her statement the practitioner records that she first saw this patient in 1987. He had a history of alcoholism and drug use, anxiety, asthma and depression and sleep disorder. She also records this patient exhibited drug seeking behaviour and had given Temazepam to a friend. 2. At [295] of her statement the practitioner concedes she prescribed an excessive amount of Temazepam for this patient, that she should have recognised she was not adequately managing his drug problem and should have referred to patient to Professor Webster earlier than March 2013. 3. Dr Nespolon opines that the practitioner prescribed Temazepam in excessive does up to March 2013 when the patient was referred to Professor Webster. He states that particular (f) is not established as the practitioner did not prescribe for this patient after March 2013. 4. In the submissions provided by the practitioner's counsel, he refers to the wording of the particular noting that the excessive prescribing is asserted to be "in circumstances where the practitioner was advised by the specialist" and that the specialist's advice was not received until June 2013 but the Schedule sets out prescribing, which was clearly excessive, from July 2013. 5. Again, due to the wording of the particular, and the schedule to the complaint, we are not satisfied that particular (e) or (f) are established. But again we note the practitioner's concessions of her earlier inappropriate prescribing and her frank and appropriate concession that she could not satisfactorily manage this patient. We will refer to the practitioner's concessions later in these reasons when discussing appropriate protective orders. Particular 13 (a), (b) and (c) The practitioner prescribed paracetamol 450mg plus codeine phosphate 30mg and oxylamine succinate 5mg, a Schedule 4 medication, to Patient I as set out in Schedule 1 to the complaint (a) in circumstances where the practitioner failed to conduct appropriate ongoing assessment of the patient's cervical spine condition (b) in circumstances where the practitioner failed to make an appropriate diagnosis of the patient's spinal condition; (c) in circumstances where the practitioner should have sought a specialist opinion at an appropriate stage in relation to possible surgical interventions 1. Patient I was described by the practitioner as a patient with a history of spinal degeneration, GORD, asthma, hyperlipidaemia and migraine headaches. He was first seen by the practitioner in 1992. He was referred by the practitioner for a CT scan of his lumbar spine in March 2003. The CT scan revealed disc bulges of the L3-L4 and L4-5 discs. Further scans were ordered and obtained in July 2004, December 2008 and July 2009. In 2007 the patient underwent an MRI of his spine. 2. The practitioner referred Patient I to a neurosurgeon initially in 2003 and again in 2006. The surgeon reported that surgery was contra-indicated, and the patient refused to undergo surgery. When referred back to the surgeon in 2008 and 2013 the patient failed to attend as referred. In 2013 the patient was referred to a pain specialist, Dr Needham. 3. The patient's pain was noted by the practitioner to be worse from 2011 when the patient suffered falls in which he injured his hand and knee. The practitioner states at [223] of her statement: I conducted regular review and treatment of Patient I's other medical problems and undertook preventative health care screening. I should have recorded this in my notes. 1. In his supplementary report, Dr Nespolon notes the difficulty in deciphering the practitioner's notes and the scanty nature of her recordings. 2. In his submissions, counsel for the HCCC submits that a referral, which became Exhibit C before us, was a referral made in 2013 and that it post-dated her prescribing of Mersyndol Forte to the patient. It is further asserted "She did not refer the patient earlier" and that the particulars of the complaint are established. 3. This particular was not addressed in the written submissions of the practitioner's counsel. However, we note that the practitioner provided a number of reports from the specialist, Dr Brennan, as well as radiological reports that disclose the patient's cervical and lumbar spine problems. 4. We accept that, given the surgeon's advice in 2003, and reiterated in 2006, that he would not recommend surgery, together with patient's refusal in 2008 and thereafter to follow up on the practitioner's referral to the surgeon it is hard to suggest what more the practitioner could have done in these circumstances. We note the particular does not assert the patient should have been referred to a pain or drug and alcohol specialist but refers specifically to referral for surgical intervention. 5. The reports in the practitioner's material corroborate her history of treatment of this patient with multiple issues including radiological evidence of cervical disc protrusion. The seriousness of the patient's spinal compression revealed on the MRI and subject of comment by Dr Brennan in 2006 and his view of likelihood of development of cervical myelopathy over the patient's lifetime corroborates the practitioner's evidence. 6. We accept the practitioner's evidence about Patient I. It is corroborated, in part, by her additional clinical records which it appears were not available to Dr Nespolon. We are not satisfied that the practitioner's prescribing was carried out without proper assessment of the patient's cervical spine condition. The practitioner did appropriately refer the patient for specialist treatment, and did, based on radiological reports received and specialist advice, make an appropriate diagnosis. Particular 14 The practitioner prescribed benzodiazepines (Temazepam and Diazepam) for Patient J as set out in Schedule J of the complaint (a) in quantities that were excess of recognised therapeutic standards as to what was clinically appropriate;(b) in excess of dose recommended by the specialist 1. In his written submissions at [56] counsel for the HCCC extracted part of Dr Nespolon's supplementary report. Dr Nespolon noted that additional information not available to him at the time of his earlier reports had been supplied by the practitioner. He records that he could find no mention of benzodiazepines in Professor Webster's letter of recommendations on which the practitioner asserted she relied. 2. At [57] of his submissions counsel for the HCCC says: During cross-examination in these proceedings [the practitioner] stated Patient J was on a dose of 4 benzodiazepines per day when discharged from hospital. [The practitioner] agreed she should have spoken to Professor Webster about the dosage of benzodiazepine tablets for Patient J. 1. Relying on the evidence summarised in the submissions, it is asserted on behalf of the HCCC that particulars 14 (a) and (b) are established. 2. At [232] of her statement the practitioner explained this patient, who had terminal lung disease and was a palliative care patient, had her medication Webster packed and delivered to her twice a week. She further explained "[t]he medication I prescribed for Patient J was prescribed as directed by her specialists or as per her medications on discharge from hospital". 3. At [239] of her statement the practitioner said: I agree the dosage of benzodiazepines I was prescribing for Patient J was higher than the usual therapeutic dose, at 20mg Diazepam and 20-30mg Temazepam was prescribed at the direction of Dr Webster and the Drug and Alcohol service [our emphasis]. 1. This terminally ill patient had multiple medical conditions. While we accept Dr Nespolon's comment that Professor Webster's correspondence did not refer to benzodiazepines is correct, the practitioner's unchallenged evidence is that she also relied on the advice received from the specialist drug and alcohol service practitioners. We accept that evidence. In these circumstances we are not satisfied that particulars 14 (a) and (b) are established. Particular 15 1. It his final submissions, where he noted Dr Nespolon's oral evidence, this particular was not pressed by counsel for the HCCC. It is unnecessary that we address it. Particular 19 The practitioner gave false and misleading information to the PSU on 19 January 2011, 27 October 2011 and 9 August 2012 in circumstances where she answered "not addicted" when applying for authority from the PSU, to prescribe medication for Patient K, where she knew or ought to have known that the patient had an addiction to benzodiazepines and alcohol Particular 20 The practitioner gave false and misleading information to the PSU on 19 January 2011, 27 October 2011 and 9 August 2012, in circumstances where she answered "not addicted" when applying for an authority from the PSU, to prescribe medication to Patient K, when she knew or ought to have known that the patient had an addiction to Oxycodone and alcohol 1. It is convenient to deal with these particulars together. 2. Dr Nespolon defines addiction in his supplementary report as an "overpowering desire for the continued administration of a drug of addiction". This is a direct quote from the relevant authority form which is based on s 27 of the Poisons and Therapeutic Goods Act. He also notes that a number of specialists who treated Patient K refer to her as being addicted to benzodiazepines. Dr Nespolon opines the practitioner "ought to have known" that Patient K was addicted to benzodiazepines and alcohol", and disclosed this to the PSU. The relevant form requires the practitioner to say whether he or she "considers" a patient to be a drug dependent person. The form also notes that "the determination of the status of a drug dependent person can be subjective, however it is a clinical decision that remains with the medical practitioner". 3. In his submissions the practitioner's counsel referred to the practitioner's subjective belief that Patient K was not addicted to, but dependent on, benzodiazepines and oxycodone for pain relief. This submission reflects the practitioner's evidence in her statement on this topic. 4. Further, in her statement, the practitioner set out a detailed history of this patient's referral to other specialists, her debilitating back condition and her aborted spinal surgery due to excessive bleeding. She explained that she had referred this patient to a pain management specialist, a neurosurgeon, a psychiatrist, psychologists, drug and alcohol specialists and counsellors. She was not challenged about those assertions. 5. We are cognisant of the explanation given by Professor Webster of the difference in patients with chronic injuries or conditions such as suffered by Patient K of dependence on drugs such as oxycodone, and the differentiation of dependence to an addiction to that or other drugs. On a strict objective test using the statutory definition of "addiction" in s 27 of the Poisons and Therapeutic Goods Act, it is strongly arguable that the information provided by the practitioner to the PSU was false and misleading. We also accept that in cross-examination the practitioner agreed as at 19 January 2011 it was fair to say she ought to have known the patient was addicted to oxycodone. 6. We accept the practitioner was truthful when she said she did not knowingly make a false statement in the PSU form. We also accept there is a legitimate difference of opinion between Dr Nespolon and Professor Webster on the meaning of "dependence". We have found consideration of these two particulars difficult because of the words "false and misleading" used in the pleading. That is, we do not find the practitioner deliberately intended to make a false and misleading statement in the form, but given her concession that her clinical judgment on the issue was deficient in that she ought to have known the patient was addicted to oxycodone and benzodiazepines, we find the particulars established. The conceded particulars 1. It is relevant that we briefly address the conceded particulars. Our examination of the particulars conceded by the practitioner discloses a serious lack of clinical judgment in prescribing for patients such as Patient D who received excessive prescriptions for Temazapam well outside the therapeutic range. 2. The practitioner conceded her failure to properly manage Patient F, describing her relationship with the patient as dysfunctional. She did not terminate the relationship when the patient failed to follow the practitioner's advice or take up referrals. 3. As noted earlier in these reasons, the practitioner conceded she had failed to obtain relevant authorities for nine patients contrary to the conditions placed on her registration. While she candidly admitted she had no excuse for not obtaining the authority, at least in the case of Patients Q, T, V and W we find her conduct was a flagrant abuse of a condition placed on her registration because of her past inappropriate prescribing. That conduct was completely contrary to the statement of reform and understanding the practitioner made to the delegates of the Board in 1993. 4. The practitioner's actions in this regard are not a matter to be treated lightly. The primary and overriding purpose of the imposition of conditions on a health practitioner's registration is to promote, and as far as possible to ensure, the health and safety of the practitioner's patients. Ancillary to that primary purpose is the fact that conditions may assist a practitioner whose practice of medicine has been found by delegates of a Council or the Tribunal to be deficient to remediate those deficits while retaining the ability to practise. Another important ancillary function of conditions, which are recorded on the publicly available register maintained by the Australian Health Practitioner Regulation Agency, is to act as a deterrent to other practitioner engaging in similar (mis)conduct. 5. Bearing these purposes in mind, it is clear that strict compliance with all conditions placed on a practitioner's registration is necessary. 6. The practitioner simply ignored a condition placed on her registration to ensure she practised in an appropriate manner to ensure the health and safety of her patients. Although the delegates recommended the removal of the prescribing condition in 1995 the practitioner did not take any action until 2012 to have the conditions removed. The delay in seeking removal of the conditions did not provide an excuse for the practitioner to ignore them. 7. The importance of a practitioner's responsibilities in prescribing is well recognised in many tribunal decisions and court judgments. Although determined as long ago as 1981 the comments of Hope JA in Spicer v New South Wales Medical Board & Ors (unreported NSWCA 3 of 1981 19 February 1981) remain relevant. There his Honour, with whom Reynolds and Hutley JJA agreed said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. 1. We are also independently satisfied that the practitioner's clinical records did not accord with the relevant regulation. In the practitioner's own words her records were "woeful". Conclusions unsatisfactory professional conduct and professional misconduct 1. In summary, like Professor Webster, we accept this practitioner was carrying on practice in an area where some of her cohort of patients had significant medical problems associated with drug and/or alcohol dependence. We also accept she was prepared to treat many patients who would have been rejected by other practices, or who could not afford to see a doctor who did not bulk bill. But notwithstanding the warnings of the delegates before whom she appeared, she became isolated and fell into, at best, what may be described as careless practice where she acquiesced to patients' requests and did not exercise appropriate clinical judgment. She failed to keep proper and adequate records. We are independently satisfied the particulars conceded by the practitioner and those found established by us earlier in these reasons constitute unsatisfactorily professional conduct. In reaching this conclusion we repeat our findings about the practitioner's failure to exercise appropriate clinical judgment, particularly in her treatment of Patients B, C, D, F, L and N, and to keep proper clinical records for fourteen patients. 2. Accordingly we are satisfied that unsatisfactory conduct under s 139B (1) (a) is established. We are also satisfied that the breach of conditions on the practitioner's registration in failing to obtain relevant authorities from the PSU for nine patients, and her completion of the PSU form was improper conduct and s 139B (1) (l) is established. 3. We are conscious of the need to explain why we have independently found the practitioner's admitted professional misconduct is established (see Qasim v Health Care Complaints Commission [2015] NSWCA 282 per Meagher JA at [79]. We repeat our earlier findings in respect of the particulars of Complaint 1 we have found established. Those findings, together with the particulars admitted by the practitioner, demonstrate serious departures from recognised standards. Further her breach of conditions on her registration constitutes improper conduct. The serious nature of the numerous incidents of lack of appropriate clinical judgment, failure to maintain appropriate records and the breach of conditions cumulatively justifies a finding of professional misconduct. (see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Baston JA at [67]). Protective orders 1. Earlier in these reasons we noted the purpose of protective orders is to protect the health and safety of the public. They also act as a deterrent to other practitioners engaging in like conduct. It is not denied that such orders may have elements of a punitive nature affecting a practitioner's independence and having adverse financial and emotional consequences for the practitioner and his or her family. 2. It is the practitioner's evidence that she has recognised her failings and taken positive steps to address the deficiencies in her practise of medicine, and her isolation from her peers. Her evidence of activities undertaken in 2014/2015 was not subject to challenge and we accept her evidence on this topic. 3. It is not in dispute that the practitioner in April 2013 consented to further conditions being imposed on her registration namely not to possess, prescribe, supply, dispense or administer any drug of addiction (S 8 drugs) or any restricted substance (S 4D drugs), and to authorise the exchange of information between the Council, Medicare Australia, and the PSU. 4. In November 2014 the practitioner completed a course in Anxiety Management conducted by the University of Sydney. That year she also enrolled in the Monash University course in general prescribing. She was unable to complete that course, elements of which required that she be engaged in practice at the time of completion. However, she re-enrolled in the course in June 2015 after she re-commenced working. 5. In May 2015 the practitioner completed an "online" medical records course conducted by Avant. That month she also completed a pain management online course. 6. Since May 2015, after the practitioner commenced part time work in her present practice, she has been meeting with Dr Jacob de Villiers (Dr de Villiers) in an informal mentoring arrangement. The practitioner gave oral evidence of the help she has derived from that arrangement and gave the example of the treatment of a patient who suffered a crush fracture to his hand and was prescribed Endone but told by Dr de Villiers at the time of prescribing that drug that he would not receive a repeat prescription. 7. The practitioner relied on references from Dr Gregory Burke, a consultant respiratory physician, Dr Geoffrey Needham, Consultant in Rehabilitation and Pain Medicine, Dr Brian Hoolihan, Obstetrician and Gynaecologist and Dr Dan Harmelin, Senior Lecturer (Clinical) Graduate School of Medicine, Wollongong University. None of these practitioners, all of whom knew the practitioner whilst she practised in Nowra, was required for cross-examination. She also relied on Professor Webster's report which we have referred to in some detail earlier in these reasons. 8. It is unnecessary we repeat in detail what each specialist said about the practitioner in the references provided. The general tenor of the referees' evidence is that their reference is provided on the basis of their professional dealings with the practitioner, and that they hold her in high regard. Dr Burke said in his view the practitioner appeared motivated by genuine compassion for her patients. Dr Needham said he did not observe any features of the practitioner's practices that he considered were inappropriate, excessive or negligent. 9. The principal owner of the general practice where the practitioner currently practises on a part-time basis, Dr Kiet Luu, provided a statement dated 18 August 2015. He explained that the practitioner commenced working in the practice in March 2015, and that she has been compliant with her prescribing restriction. He expressed the view that the practitioner has demonstrated genuine remorse and contrition for her past practices, that he has no concerns about the practitioner as a colleague, and that he looks forward to her continuing to practise in the practice. 10. Dr de Villiers in his letter to the practitioner's solicitors explained that when the practitioner commenced work at the medical centre in March 2015 she had asked him to act as her mentor. He explained he had conducted two formal sessions with the practitioner covering topics of prescribing benzodiazepines and narcotics and managing patients with drug seeking behaviours, Warfarin care and medical notes. He also referred to other informal discussions. He revealed that the practitioner had discussed matters forming the subject of the complaint with him and that he found she expressed genuine remorse and contrition for her behaviour. He opined that he found the practitioner to be "a very compassionate person and that for the 4 months I worked with her when we shared patients I found her to be a capable physician". He confirmed, based on his high opinion of the practitioner, that he would not hesitate to continue as her mentor for as long as is needed. 11. On the practitioner's own concessions, and our independent findings particularised above, the practitioner is guilty of more than one instance of unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. That finding does not however mean that the practitioner's registration must be suspended or cancelled (see HCCC v King [2013] NSWMT 9). 12. Counsel for the HCCC helpfully provided us with proposed protective orders (Ex 17) and submitted that, if we did not cancel or suspend the practitioner's registration, we should reprimand her, and impose a number of conditions on her registration including a restriction on her right to supply, administer or prescribe any S 8 or S 4D drug, that she obtain prior Council approval before changing her place of practice, to only practise in a group practice approved by the Council, to engage with a mentor, to submit to an audit of her medical practice records and to complete the Monash general prescribing course in which she is presently enrolled. Counsel for the HCCC made an oral submission that the conditions should be made as critical compliance conditions, but that proposed order was not pressed in the final draft of proposed orders tendered to us. Nevertheless, we have given serious consideration as to whether the prescribing conditions should be critical compliance conditions. 13. The practitioner did not oppose the proposed conditions, subject to a concern expressed by her counsel about the conditions precluding her from possessing any S 8 and S 4D drugs. He pointed out that the practitioner may herself be prescribed such a drug, and if she "possessed" the drug she would be in breach of the condition, which as a critical compliance condition, would automatically involve cancellation of her registration. 14. We are cognisant of the serious nature of the practitioner's concessions, and the disputed particulars we have found proven. We have also given careful consideration to the fact that the practitioner, in 1995, while expressing remorse and contrition and asserting a change in her practices later repeated the very conduct in which she had previously engaged. These matters are appropriate to take into account in determining whether it is necessary to cancel or suspend the practitioner's registration. However, they must be balanced and weighed with the practitioner's present circumstances and the factors so cogently enunciated by Professor Webster as prevailing in the Nowra area at the relevant time. 15. We accept the practitioner's present working arrangements in Queensland appear eminently satisfactory. The practitioner's hours of work are limited thus overcoming her previous issues of juggling family responsibilities and tiredness with patient demands. She has peer support and very experienced colleagues with whom she can consult in respect of difficult patients. She has a mentor who appears, by reason of his experience and qualifications, to be suitable to engage in a mentoring role. An audit of her records will confirm her evidence that her records are satisfactory and provide objective evidence to the Council of that fact. 16. Further, subject to the qualification in respect of possessing S 8 or S 4D drugs (or their Queensland equivalents), which may be overcome by a drafting amendment, the practitioner does not seek to have prescribing rights for these drugs. A lack of such rights should not be a difficulty in her group practice situation and will ensure she does not inappropriately prescribe these drugs. 17. We find, given the practitioner's history of the breach of conditions on her registration, and her prescribing history, that the prescribing conditions should be critical compliance conditions. A critical compliance condition, because of its serious consequences if contravened may be described as draconian The imposition of critical compliance condition requires careful consideration. But given the practitioner's evidence about her present circumstances it is highly unlikely that she would inadvertently breach her prescribing conditions. The paramount safety of the public is advanced by the prescribing conditions being critical compliance conditions as provided in s 149A (4) and (5) of the National Law. 18. Balancing all the competing factors discussed above, we do not find it would be appropriate to suspend or cancel the practitioner's registration. In reaching this finding we place most weight on the steps the practitioner has taken in 2014 and 2015 to remedy the defects in her practice and to place herself in an environment where she can practise without risk to her patient's safety. We also take into account the high regard of the practitioner expressed by the specialists who provided references for her. 19. We do, however, find that the practitioner should be reprimanded. In making this finding we are conscious such an order is a serious one, and will result in the reprimand appearing on the public register maintained by AHPRA. It demonstrates the Tribunal's condemnation of the practitioner's conduct, particularly her breach of the conditions place on her registration. It will serve as a deterrent to other practitioner from engaging in like conduct. 20. We turn then to the question of whether the conditions proposed by the HCCC are adequate to protect the public while permitting the practitioner to practise. There can be no doubt that this practitioner, who her peers describe as a compassionate practitioner, appears to have benefitted from her present mentoring arrangement. We are satisfied that arrangement should be continued. To ensure the efficacy of this arrangement we will order that the mentor discuss with the practitioner management of patients with chronic anxiety and pain, including but not limited to, pharmacological management of anxiety and chronic pain in difficult patients. 21. We had no evidence before us, other than the practitioner's statement that her record keeping had improved to independently verify that statement. We accept the practitioner did state, and we accept that her present practice uses Medical Director, a computerised medical record keeping program. Ensuring the practitioner's medical records are satisfactory will be established by an audit of those records. 22. We find that the other conditions proposed in Ex 17 are appropriate. Those relate to ongoing education. We also accept that the conditions (which are drafted to reflect the application of the National Law in NSW) should be monitored by the Medical Board of Australia given the practitioner's residence in Queensland, and if the practitioner remains in that State s 125 to 127 of the National Law shall apply. If the practitioner returns to NSW and seeks removal of, or variation, of the conditions the appropriate review body should be the Council. Costs Relevant Legal Principles 1. The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well known appellate authority (see Ohn v Walton (1995) 36 NSWLR 77). They have recently been reiterated by Meagher JA with whom McColl and Ward JJA agreed in Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. These proceedings under s 139B and s 139E require the hearing of an inquiry into the complaint or complaints made. Schedule 5D cl 13 (a NSW provision of the of the National Law) provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or other any of person entitled to appeal (whether as of right or because leave to appear has been granted) at any inquiry or an appeal before the Tribunal to pay the costs to another person as decided by the Tribunal. 1. Clause 13 (2) and (3) provide a regime for obtaining a costs certificate from the Tribunal, and for the costs order to be enforced and judgment obtained in the District Court. 2. The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do [2014] NSWCA 377 albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law which has national application by reason of s 201, his Honour noted, in respect to the power to award costs: That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal. 1. His Honour then referred to the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs. 1. The HCCC sought an order that the practitioner pay its costs of and incidental to the proceedings. No quantum of the costs order sought was made to us. 2. The practitioner did not make any submissions on the question of costs. Discussion and conclusions – costs 1. We are satisfied that there are no relevant circumstances in this matter we should take into account in favour of the practitioner noting that the concessions made by the practitioner were not made until shortly prior to the hearing. Accordingly, in accordance with authority we find that the practitioner should pay the HCCC's costs as agreed or failing agreement liberty to restore to the Tribunal for determination. orders 1. The practitioner is reprimanded. 2. The conditions set out in paragraph 4 below shall be imposed on the practitioner's registration on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) 3. AHPRA is requested to record the conditions on the register. 4. The practitioner shall: 1. Not possess (unless prescribed for the practitioner for her use by a registered medical practitioner) supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW); 2. not possess (unless prescribed for the practitioner for her use by a registered medical practitioner) supply, administer or prescribe an substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Act 1966 (NSW). 3. obtain Medical Council of NSW (Council) or if she resides in Queensland the Medical Board of Australia (Board) approval prior to changing the nature or place of the practitioner's practice; 4. practise only in a group practice approved by the Council or the Board where at least 1 other registered practitioner (excluding the subject practitioner) is always on site; 5. nominate a proposed mentor to the Council or the Board within 21 days of the date of imposition of these conditions; 6. participate in face-to-face meeting the with Council or Board approved mentor at a frequency determined by the mentor but not less than once per month and discuss with the mentor management of patients with chronic anxiety and pain, including but not limited to, pharmacological management of anxiety and chronic pain and such other topics as the mentor deems appropriate; 7. authorise the mentor to inform in writing the Council or the Board every three months, commencing three months from the date of approval of the mentor by the Council or the Board, that meetings have occurred and use her best endeavours to ensure the mentor's compliance with this condition; 8. authorise the mentor to inform in writing the Council or the Board immediately if the mentoring relationship ends or of any concerns regarding the performance of the practitioner or her compliance with any conditions on her registration; 9. meet all costs associated with the mentorship 10. inform the Council or the Board if the mentor is or will be unavailable for two or more consecutive meetings during the mentorship; 11. immediately nominate a proposed replacement mentor to be approved by the Council or the Board if the approved mentoring relationship ends or is suspended because of the unavailability or unwillingness of the mentor to continue the mentoring relationship; 12. to submit to an audit of her medical practice by a random selection of her medical records by a person or person nominated by the Council or the Board and 1. the audit is to be held within 3 months from the date of this decision and subsequently as required by the Council or the Board; 2. the auditor(s) is to assess her compliance with good medical record keeping standard and legislative requirements and compliance with conditions; 3. to authorise the auditor(s) to provide the Council with a report of their findings; and 4. to meet all costs associated with the audit(s) and any subsequent reports. 1. Conditions 4 (a) and (b) are critical compliance conditions and any contravention by the practitioner of condition 4 (a) or (b) shall result in the practitioner's registration being cancelled. 2. The practitioner shall authorise the exchange of information between Medicare Australia and the Council or the Board where required to facilitate the monitoring of these conditions. 3. The practitioner shall within twelve months of the date of this decision complete the course offered by Monash University "Issues in General Prescribing" (the course) and 1. within four weeks of completing the course provide evidence in writing to the Council or the Board that she has satisfactorily completed the course; 2. bear responsibility of all costs incurred in compliance with this order. 1. In the event that the course is unavailable the practitioner must propose to the Council or the Board for approval a similar course to be undertaken and satisfactorily completed by her within 18 months from the date of this decision. In such event the provisions of Order (4) (a) and (b) shall apply. 2. The conditions imposed on the practitioner's registration may be altered varied or removed by the Council or the Board and in the event the practitioner resides in NSW the Council shall be the appropriate review body for the purposes of Div 8, Part 8 of the Health Practitioner Regulation National Law (NSW). 3. Should the practitioner seek to change or remove the conditions imposed when her principal place of residence is anywhere in Australia other than NSW, sections 125 to 127 inclusive of the Health Practitioner Regulation National Law shall apply so that a review of these conditions can be conducted by the Board. 4. The practitioner shall pay the costs of an incidental to the proceedings of the Health Care Complaints Commission as agreed and failing agreement liberty to restore before the Tribunal. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 19 March 2024 - Changed case name from 'Heath Care...' to 'Health Care..'. 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: 19 March 2024