Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghannoum [2015] NSWCATOD 149 Hearing dates: 23 March 2015, 21 & 22 July 2015Written submissions by 6 August 2015 Date of orders: 17 December 2015 Decision date: 17 December 2015 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ – Principal member Dr R Gordon – Professional Member Dr E Kertesz – Professional Member M Kelly – General Member Decision: (1) The Parties must each provide any further submissions on the proposals in (5) to (10) of para 172 of these reasons by 22 December 2015. (2) Publication or broadcast of the name or other identifying information of any patient is prohibited. Catchwords: Disciplinary proceedings; Medical practitioner; prescribing addictive drugs, inadequate patient records, breach of condition of registration, treating family members. Professional misconduct, conditions imposed on registration. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a; Poisons and Therapeutic Goods Act 1966 (NSW); Poisons and Therapeutic Goods Regulation 2008 (NSW); Medical Practice Regulation 2003; Medical Practice Regulation 2008; Health Practitioner Regulation (New South Wales) Regulation 2010: Civil and Administrative Tribunal Act 2013 Cases Cited: Spicer v NSW Medical Council (unreported) CA No 3 of 1981; Prakash v Health are Complaints Commission [2006] NSWCA 153; Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Wael Ghannoum (Respondent) Representation: Counsel: S Beckett (Applicant) P Morrison SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Withstand Lawyers (Respondent) File Number(s): 1420282 Publication restriction: Publication or broadcast of names or other identifying information of any patient is prohibited. Judgment Introduction 1. This was a disciplinary hearing in respect of the complaint by the applicant against the respondent. In these reasons the expression "National Law" is used to refer to the Health Practitioners Regulation National Law (NSW) No 86a. The Civil and Administrative Tribunal Act 2013 is referred to as "the Act". "Schedule 8" is Schedule 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) and "Schedule 4D" is Schedule 4D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 2. The original complaint was filed on 27 August 2014 and later amended by the filing of an amended complaint on 23 March 2015. 3. In summary the grounds are as follows:- Ground 1 - That the respondent is guilty of unsatisfactory professional conduct under s.139B(1)(a) and/or (l) of the National Law in that he: - 1. (i) Engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the respondent in the practice of medicine is significantly below the standard reasonably expected by the respondent of an equivalent level of training or experience; and/or 2. (ii) Engaged in improper or unethical conduct relating to a practice or purported practice of medicine. Particulars of the ground comprise allegations of multiple occasions of prescribing Benzodiazepines for each of 19 patients in circumstances attracting criticism. Ground 2 – The Respondent has been guilty of unsatisfactory professional conduct, under s. 139B (1)(c) of the National Law in that he has contravened the condition to which his registration was subject. In particular it is alleged that in November 2009 his registration became subject under section 40 of the Medical Practice Act 1992 (repealed) to conditions including a condition to not prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 Drugs), or prescribe restricted substances (Schedule 4D drug or Schedule 4D derivative) The Particulars of ground 2 - 1. (Between 23 October 2010 and June 2012 the respondent contravened the Practice Condition 1 on his registration in that he prescribed Phenobarbitone 30 mg tablets for patient "Y" on each of 23 October 2010 , 23 October 2012, 4 February 2011, 7 March 2011, 7 March 2011, 18 May 2011 and 8 June 2012. 2. On 10 November 2011, the respondent contravened the Practice Condition 1 in that he prescribed Oxycodone Hydrochloride 10 mg tablets to patient "Z" 3. On 13 February 20012 the respondent contravened Practice Condition 1 on his registration in that he prescribed Temazepam 10 mg tablet to patient "V". Ground 3 - That the Respondent has been guilty of unsatisfactory professional conduct within the meaning of s. 139B (1)(b) and/or (l) of the National Law in that he has: 1. contravened Health Professional Regulation (NSW) (Regulation 210); and/or 2. contravened the Medical Practice Regulation 2003 (repealed); and/or 3. contravened the Medical Practice Regulation 2008 (repealed); and/or 4. engaged in the improper or unethical conduct relating to the practice or purported practice of medicine The particulars of the ground set out details of 27 instances where his medical record in respect of a patient has attracted criticism. Ground 4 – The Respondent has been guilty of unsatisfactory professional conduct under s.139B (1)(a) and/or (l) of the National Law and that he: - 1. (i) engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the respondent in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine The particulars that follow refer to the practitioner in the period August 2010 to April 2012 on more than one occasion treating each of 5 members of his family including prescribing medication. Ground 5 - The Respondent is guilty of professional misconduct under s. 139E of the National Law in that the respondent has:- 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. As particulars of ground 5, grounds 1,2,3 and 4 and the particulars thereof are repeated and relied upon both individually and cumulatively. 1. On the first day of hearing by consent the complainant withdrew one particular in ground 1 and amended the particulars to complaint 2 by changing the patient reference in one of the complaints to another patient. 2. The Respondent in a statement of 10 February 2015 filed in the proceedings admitted the factual allegations in relation to Grounds 1 to 5, but he denied that the treatment of his family members the subject of Ground 4 constituted professional misconduct or unsatisfactory professional conduct. 3. On the first day of hearing the respondent, through his counsel, admitted grounds 1 , 2, & 3 (including the particulars) and that within the meaning in ss 139B and 139E of the Health Practitioners Regulation National Law NSW his conduct in each of those grounds constituted unsatisfactory professional conduct and together constituted professional misconduct. He admitted Ground 4 and its particulars but denied that it constituted unsatisfactory professional conduct. Evidence of the Respondent 1. Although the respondent relied on 2 unsworn statements, both dated 10 February 2015, he gave no sworn evidence in these proceedings and thus was not cross examined. The Evidence 1. The evidence in the hearing comprised he following:- 1. Amended complaint and schedules; 2. Certificate of Registration Status from the Medical Council of NSW; 3. Section 244A Evidentiary Certificate of Medical council of NSW; 4. Certificate of Registration status from Australia Health Practitioners Regulation Agency; 5. Letter to HCCC from the Medical Council of NSW (MCNSW) referring to the complaint dated 10 July 2012; 6. Complaint from Tony Webber, Professional Services Review (PSR) to the NSW Medical Board dated 15 July 2009 7. s.106XA of the Health Insurance Act 1973; 8. Letter to Dr Jennifer Orman from HCCC requesting expert review dated 17 June 2013; 9. HCCC file note dated 19 June 2013; 10. Expert report from Dr Orman dated 11 July 2013; 11. Dr Orman's Curriculum Vitae; 12. Letter from HCCC to Dr Orman dated 17 July 2013 and attachments; 13. Supplementary expert report from Dr Orman dated 19 July 2013; 14. Conduct Committee meeting minutes of 10 November 2009 15. MCNSW file note of 23 May 2012; 16. MCNSW file note of dated 24 May 2012; 17. Letter from MCNSW to the HCCC dated 17 July 2012; 18. MCNSW file note dated 6 December 2012; 19. Email from MCNSW to HCCC dated 12 December 2012; 20. Letter from Ombudsman, Privacy and FOI Branch to MCNSW dated 30 January 2013; 21. Email from MCNSW to HCCC dated 7 February 2013 attaching documents listed as 20 and 22; 22. Letter from MCNSW to Medicare Australia dated 17 January 2013; 23. CD recording of s.150 proceedings held on 12 July 2012; 24. Transcription of s150 proceedings dated 12 July 2012; 25. Reasons for the decisions dated 10 August 2012; 26. Prescriber detail information report for the respondent's family members from Medicare Australia for period 1 December 2009 to 30 April 2012; 27. Provider Patient Information Report indicating consultations claimed by by the respondent from Medicare Australia for the period 1 June 2009 to 30 November 2009; 28. Prescriber detail information report indicating dispensed prescriptions written by Respondent from Medicare Australia for the period 1 June 2009 to 30 November 2009; 29. Letter from MCNSW to Medicare Australia dated 16 July 2010 attaching item 30; 30. Prescribing History Report from Medicare Australia for the period 7 December 2009 to 30 April 2010; 31. Medicare data for the period 1 December 2009 to 30 April 2012 contained on 2 CD's; 32. Letter from Medicare Australia to MCNSW dated 15 November 2012; 33. Letter from Avant Law to NSW Medical Board (NSWMB) on behalf of the respondent dated 17 September 2009; 34. Complaint response from the respondent to the NSWMB dated 28 September 2009; 35. Letter to the respondent from NSWMB concerning proposed conditions dated 13 November 2009; 36. Letter from Avant Law to NSWMB dated 27 November 2009 attaching item 37; 37. NSWMB conditions to be recorded on respondent's registration in NSW; 38. Letter to the respondent from NSWMB dated 15 December 2009 attaching items 109 and 110; 39. Email from the respondent to the MCNSW of 10 August 2010; 40. Letter from MCNSW to respondent of 22 May 2012 ; 41. Fax from respondent to MCNSW of 24 May 2012; 42. Fax from respondent to MCNSW of 24 May 2012; 43. Letter from Dr Ray Asghari to respondent of 17 November 2011; 44. Letter to respondent from MCNSW dated 5 June 2012 attaching item 45; 45. Consent to conditions of registration; 46. Signed consent to conditions remaining on registration faxed to MCNSW and dated 12 June 2012; 47. Psychiatric examination report of 25 June 2012 by Dr Bruce Westmore concerning respondent; 48. Letter from MCNSW to respondent of 7 July 2010; 49. Email from Avant Law to MCNSW of 14 July 2010; 50. Letter of 16 July 2010 from MCNSW to respondent; 51. Email from respondent to MCNSW of 18 July 2010; 52. Email of 22 July 2010 from respondent to MCNSW; 53. Email of 22 July 2010 from MCNSW to respondent; 54. Email of 11 August 2010 from respondent to MCNSW; 55. Letter of 15 August 2012 from HCCC to respondent; 56. Email response of 28 August 2012 from respondent to HCCC attaching item 57; 57. Respondent's Curriculum Vitae; 58. Letter of 20 March 2013 from Dr Lal to respondent attaching item 59; 59. Letter of 10 July 2009 from Dr Lal to Dr Sanki concerning treatment of respondent; 60. S 40 letter of 9 May 2013 from HCCC to respondent attaching items 112 to 115; 61. Response of 6 June 2013 by Avant Law to HCCC; 62. Email of 7 June 2013 from HCCC to Avant Law attaching item 63; 63. Letter of 7 June 2013 from HCCC to respondent; 64. Letter of 19 June 2013 from HCCC to respondent; 65. Email from 21 June 2013 from Avant Law to HCCC; 66. Email of 24 June 2013 from HCCC to Avant Law; 67. Email of 24 June 2013 from Avant Law to HCCC; 68. S 40 letter of 23 July 2013 from HCCC to respondent; attaching copies of items 10 & 13; 69. Response of 15 August 2013 from respondent to HCCC attaching items 70 to 73 (n.b. conditions not attached); 70. Medical Director Patient Medical Records; 71. Patient Progress Notes; 72. Training Aid Certificate for Cardio Pulmonary Resuscitation dated 28 July 2012; 73. Letter of 15 August 2013 from Dr Ziad Fashka to HCCC; 74. Clinical Supervisor Report of Dr Fashka; 75. Clinical Records and Medicare data relating to patient A for period 1 October 2007 to 30 September 2008; 76. Medical Records and Medicare data relating to patient B for period 1 October 2007 to 30 September 2008; 77. Medical Records and Medicare data relating to patient C for period 1 October 2007 to 30 September 2008; 78. Medical Records and Medicare data relating to patient D for the period 1 October 2007 to 30 September 2008; 79. Medical Records and Medicare data relating to patient E1 for the period 1 October 2007 to 30 September 2008; 80. Medical Records and Medicare data relating to patient T for the period 1 October 2007 to 30 September 2008; 81. Medical Records and Medicare data relating to patient U for the period 1 October 2007 to 30 September 2008; 82. Medical records for patient AB; 83. Medical records for patient AC; 84. Medical Records for patient AD; 85. Medical Records for patient AE; 86. Medical records relating to patient AF; 87. Medical Records for patient V; 88. Medical Records and Medicare data relating to patient E for the period 1 October 2007 to 30 September 2008; 89. Medical Records and Medicare data relating to patient W for the period 1 October 2007 to 30 September 2008; 90. Medical Records and Medicare data relating to patient X for the period 1 October 2007 to 30 September 2008; 91. Medical Records and Medicare data relating to patient F for the period 1 October 2007 to 30 September 2008; 92. Medical Records and Medicare data relating to patient G for the period 1 October 2007 to 30 September 2008; 93. Medical Records and Medicare data relating to patient H for the period 1 October 2007 to 30 September 2008; 94. Medical Records and Medicare data relating to patient Y for the period 1 October 2007 to 30 September 2008; 95. Medical Records and Medicare data relating to patient I for the period 1 October 2007 to 30 September 2008; 96. Medical Records and Medicare data relating to patient J for the period 1 October 2007 to 30 September 2008; 97. Medical Records and Medicare data relating to patient K for the period 1 October 2007 to 30 September 2008; 98. Medical Records and Medicare data relating to patient L for the period 1 October 2007 to 30 September 2008; 99. Medical Records and Medicare data relating to patient M for the period 1 October 2007 to 30 September 2008; 100. Medical Records and Medicare data relating to patient N for the period 1 October 2007 to 30 September 2008; 101. Medical Records and Medicare data relating to patient Z for the period 1 October 2007 to 30 September 2008; 102. Medical Records and Medicare data relating to patient O for the period 1 October 2007 to 30 September 2008; 103. Medical Records and Medicare data relating to patient AA for the period 1 October 2007 to 30 September 2008; 104. Medical Records and Medicare data relating to patient P for the period 1 October 2007 to 30 September 2008; 105. Medical Records and Medicare data relating to patient Q for the period 1 October 2007 to 30 September 2008; 106. Medical Records and Medicare data relating to patient R for the period 1 October 2007 to 30 September 2008; 107. Medical Records and Medicare data relating to patient S for the period 1 October 2007 to 30 September 2008; 108. Drugs of Addiction Schedule 8, dated March 2007; 109. Drugs of Addiction Schedule 4 appendix D – Drugs, dated September 2007; 110. Medical Practice Regulation 2003, Part 3 (repealed); 111. Medical Practice Regulation 2003, Schedule 2 (repealed); 112. Health Practitioner Regulation (NSW) Regulation 2010 Part 4; 113. Health Practitioner Regulation (NSW) Regulation Schedule 2; 114. Good Medical Practice, a Code of Conduct for Doctors in Australia (Medical Board of Australia); 115. Code of Professional Conduct NSW Medical Board published 2005; 116. MCNSW Policy on Self-treating and treating relatives created August 2001 and revised July 2010; 117. Letter of Dr Sharat Lal re respondent dated 27 September 2014; 118. Letter of 20 March 2013 by Dr Lal to Ms Holmes; 119. Letter of 10 July 2009 from Dr Lal to Dr Sanki; 120. Report of 30 December 2014 by Dr Ralf Ilchef; 121. Report of Dr Ilchef dated 9 June 2015; 122. Supervision reports by Dr Fashka dated of October 2013 to January 2015; 123. Transcript of MCNSW s 150 proceedings of 5 March 2015; 124. Decision of 17 March 2015 of MCNSW s 150 proceedings; 125. Compliance History of Respondent; 126. Reference by Dr Marwin Aloe of 3 March 2015; 127. Reference of Mr George Youkhana dated 2 March 2015; 128. Reference of Hardar Habib dated 2 March 2015; 129. Reference of Steve Barri dated 2 March 2015; 130. Reference from Dr Antoine Sanki of 5 March 2015; 131. Letter of 18 March 2015 by Withstand Lawyers to Tribunal; 132. Statement of Respondent dated 10 February 2015 re breach of condition of registration; 133. Statement of the Respondent dated 10 February 2015 re the 5 grounds of the subject complaint; 134. Exhibit R1 - Letter of 18 February 2010 from Avant Law to the respondent enclosing copy of letter of 16 February 2010 to the respondent from the Professional Services Review and form of agreement between respondent and the Review; 135. Exhibit R2 - Letter of 17 June 2015 to Dr A Philips from psychCentral, Psychiatric Services; 136. Exhibit R3 – Report on the respondent's medical practice premises and equipment by Dr Riad of 23 June 2015 137. Exhibit HCCC 1 - copy of letter 7 March 2011 from the respondent to the MCNSW undertaking to comply with the requirements of his practicing condition 1; 138. Exhibit HCCC 2 – Letter of 13 February 2015 by MCNSW to Dr Aloe with copies of enclosures; 139. Exhibit R4 – Copy of letter of 11 May 2015 from Dr Aloe to MCNSW and letter of 12 June 2015 from Dr Aloe to MCNSW; 140. Oral Evidence of Dr Jennifer Moan on 23 March 2015; 141. Oral Evidence of Dr Ilchef on 21 July 2015; 142. Oral evidence of Dr Fashka; 143. Oral evidence of Dr Riad on 22 July 2015; 144. Oral Evidence of Dr Allo on 22 July 2015; and 145. other factual matters admitted by the respondent in his documents, on the first day of the hearing, or in written submissions on his behalf filed on 4 August 2015. History 1. Chronologies were provided by both parties and much of this history comprises matters common to both. 2. The respondent graduated with a Degree in Medicine from Aleppo University, Syria, in 1990. In 1991 he worked as an intern and completed 12 months of general surgical training. Later that year he migrated to Australia. 3. In 1993 he passed the Medical Council exams and completed his internship in Australia. He worked for 6 months for the Queen Elizabeth Hospital in Adelaide. 4. On 30 November 1994 the respondent became registered as a Medical Practitioner in Australia and commenced working in the Prince of Wales Hospital in Sydney. He was there for 12 Months. 5. He commenced work as a general practitioner in solo practice in 1995 at Guildford in Sydney. 6. From 1995 until June 2009 the respondent prescribed Benzodiazepines on numerous occasions to each of 19 patients identified in the evidence but referred to in the complaint as "A", to "S". The admitted particulars 1-19 in respect of those patients in ground 1 are that such prescribing was done in each case subject to one or more of the following inadequacies and for 14 of the patients there were 4 to 6 such inadequacies: * without taking an appropriate medical history of the patient; * without conducting an appropriate physical and mental examination of the patient; * without taking adequate steps to identify or exclude other physical or psychological conditions which may have caused the patient's symptoms; * without providing counselling about alternative treatments; * Where patient was already drug addicted; * without providing counselling or advice about drug dependence issues; * in a frequency in excess of recognised therapeutic standards as to what is medically appropriate; * for a duration in excess of recognised therapeutic standards as to what is medically appropriate; * in an inappropriate combination of drugs; and * without exercising proper medical judgment as to whether to issue such prescriptions; 1. Between 16 February 2004 and 31 January 2009 in respect of 27 patients (identified in the proceedings but referred to in these reasons as "A" to ""Z" (including "E1" but no "E") and "AA") as particularised in Ground 3, particulars 1 to 27 he failed to make adequate medical records of the patients. 2. The admitted particulars of how the records were inadequate were: 1. failure to record patient's medical history (27 patients); 2. failure to record sufficient history of previous or ongoing drug use by patient (26 patients); 3. failure to record details of any examination of the patient's physical and mental state (26 Patients); 4. failure to record any advice, information or counselling relating to drug dependence or alternative drug treatment (26 patients); 5. failure to record sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case (27 patients); 6. failure to record the patient's past pain management regime (1 patient); 7. notes not legible (1 patient); and 8. failure to record plans, nature and results of treatment of patient (1 patient). 1. In June 2009 because of depressive illness, his solicitors advised the Medical Board that he had ceased practice and closed his practice. In July 2009 he consulted the psychiatrist, Dr Lal, who prescribed medication, namely Efexor XR. 2. The NSW Medical Board subsequently received information from Dr Tony Webber, Director of Professional Services Review, raising concerns about the respondent as to over-prescription of addictive drugs, poor records and other matters. The respondent was asked to attend an interview with a Professional Services Review Panel on 25 September 2009. 3. On 17 September 2009 the respondent's solicitor wrote to the NSW Medical Board and stated that the respondent had ceased to practice from June 2009 due to him suffering severe depression and anxiety. The letter advised the respondent was unfit to attend an interview with the Professional Services Review Panel. The letter said that the respondent sought to be removed from the register and placed on the non-practising register. 4. The respondent wrote to NSW Medical Board on 28 September 2009. In that letter he advised in response to the issues raised by Dr Webber "I would like to confirm that I was treating and managing my patients properly since I practiced medicine as GP in 1995. Unfortunately, I realised that I suffer from major depression and anxiety/work related. I decided to stop practicing (sic)as a GP in June/2009 due to my psychiatric condition." 5. He asked: "Please dismiss the issues raised by complainant". 6. On 10 November 2009 the Medical Board Conduct Committee resolved to impose conditions on the respondent's registration pursuant to s 140B of the Medical Practice Act 1992. The Council resolved to refer the complaint to the Health Care Complaints Commission. Unfortunately, as a result of oversight, the referral did not occur till much later. 7. The Medical Board wrote to the respondent on 13 November 2009 regarding his prescribing of Schedule 4D and Schedule 8 drugs and his proposal to transfer his registration to the non-practising category. It also advised of the decision of the conduct Committee and enclosed a proposed condition for his registration to prohibit him from prescribing or dealing with those drugs and offering him the option of consenting to the imposition of that condition and others on his registration. 8. On 23 November 2009 the respondent agreed to the conditions proposed by the Medical Board. Those conditions are: To not prescribe, possess supply, administer handle or dispense any drug of addiction(Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). a. Unless this has already occurred, to attend the offices of the Pharmaceutical Services Branch of the NSW Department of Health by close of business on 4 December 2009 and surrender his authority under the provisions of the Poisons and Therapeutic Goods Regulation 2002 to have possession of, prescribe, supply, dispense, or administer any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). b. Any future change in his Schedule 8 / Schedule 4D authority must be in accordance with the NSW Medical Board's protocol. This must include consultation with the NSW Medical Board prior to the submission of any variation application to the Pharmaceutical Services Branch. 2. Dr Ghannoum authorises and consents to any exchange of information between the NSW Medical Board and Medicare Australia or the Pharmaceutical Services Branch where such exchange is necessary to facilitate the monitoring of compliance with these conditions. 3. To provide the NSW Medical Board with a copy of his Practice Conditions signed by or on behalf of his current employer, if any, within 7 days of receipt of these conditions, and/or prior to commencing any new employment. 4. These conditions may be varied , amended or removed at the discretion of the NSW Medical Board. 1. On 4 December 2009 the respondent surrendered his authority to be in possession of, prescribe, supply, dispense, or administer any drug of addiction (Schedule 8 Drugs) or any prescribed restricted substance (Schedule 4D Drug or Schedule 4D derivative). 2. On 4 February 2010 the Respondent breached Practice Condition 1 by prescribing Phenobarbitone for patient Y. 3. On 7 July 2010 the Medical Council wrote to the respondent. It advised him the routine check of database of Medicare Australia indicated that he had been prescribing medications during the period 7 December 2009 until 30 April 2010. It pointed out that as prescribing constituted medical practice, it appeared that he had been practising during that period. It sought explanation from the respondent. In its letter the Medical Council informed the respondent that prescribing medication also constitutes a breach of his registration condition number 3 because he had not provided the NSW Medical Board with practice conditions signed by employer prior to commencing new employment . 4. The respondent's solicitor replied on 14 July 2010 and advised that the respondent instructed him that he had not been practising and did not prescribe any medications during that period. 5. The Medical Council wrote to respondent again on 16 July 2010 providing details of 58 prescriptions during the period ¬7 December 2009 to 30 April 2010 provided by Medicare Australia. The letter advised that the Medical Council had written to Medicare Australia requesting confirmation that the details were correct, because of the severity of errors occurring from time to time in transmission of data between agencies. 6. On 18 July 10 the respondent wrote to his solicitor and said "I haven't been prescribing any medications and I haven't seen any patients as well as I haven't been billing Medicare since June 2009." 7. In the reply of 14 July 2010, the respondent's solicitor said that the respondent had not practised since June 2009; the patients were filling repeat prescriptions that were issued before conditions were in place and before the respondent ceased to practise, and that could explain the Medicare data. However, in the hearing under s 150 of the National Law held on 12 July 2012, the respondent's evidence was that he thought that he re-registered with AHPRA to resume practice in January of 2010. 8. The Medical Council replied on 16 July 2010. It provided itemised Medicare data, which showed the prescriptions being made during the period 7 December 2009 to 30 April 2010. By letter dated 27 July 2010 the respondent informed the Medical Council that he had not seen any patients and not prescribed any medications since June 2009. 9. After further investigations it ultimately was found that almost all of the 58 prescriptions raised were not problematic. There were only 9 prescriptions that were a problem (7 were to one patient and one to each of 2 patients) and that was because they constituted breaches of condition 1 of his registration providing that he would not prescribe Schedule 8 drugs or Schedule 4D substances. Only the prescription of 4 February 2010 occurred before the Medical Council letter of 16 July 2010. The other 8 occurred after that letter. 10. On 10 August 2010 the respondent notified the Medical Council of NSW by email that he would be returning to practice as a sole practitioner from 16 August 2010. The next day he advised the Council that he would be seeing patients at home, as part of his new practice. From 16 August 2010 the respondent conducted the medical practice from premises at Bass Hill. 11. On 23 October 2010 the Respondent again breached Practice Condition 1 by issuing 2 prescriptions for Phenobarbitone for patient Y. 12. Between 18 August 2010 and 15 February 2011 the respondent treated a family member, patient "AD", including prescribing medication on two occasions. This is a subject of ground 4, particular 3. The respondent admits treating this patient and prescribing the medication, but does not admit that the conduct amounts to unsatisfactory professional conduct. 13. Between 18 August 2010 and 28 December 2011 the respondent treated the family member, namely patient "AF" including prescribing medication on 20 occasions. This is a subject of ground 4, particular 5. The respondent admits treating this patient and prescribing medication, but does not admit that the conduct amounts to unsatisfactory professional conduct. 14. On 7 March 2011 the respondent wrote to the Medical Council confirming that he would comply with the requirements of the practice condition 1. But according to the admitted particulars of Ground 2 he breached the condition by 2 prescriptions he issued that day prescribing Phenobarbitone for patient Y. 15. On 18 May 2011 the Respondent again breached Practice Condition 1 by prescribing Phenobarbitone for patient Y. 16. Between 1 September 2010 and 18 April 2012 the respondent treated the family member, namely patient "AC", including prescribing medications on 5 occasions. This is a subject of ground 4 particular 2. The respondent admits treating this patient and prescribing medication, but does not admit that the conduct amounts to unsatisfactory professional conduct. 17. Between 15 September 2010 and 20 March 2012 the respondent treated a family member, namely patient "AB", including prescribing medication on 8 occasions. This was a subject of ground 4, particular 1. The respondent admits treating this patient and prescribing medication, but does not admit that the conduct amounts to unsatisfactory professional conduct. 18. In the period 20 December 2010 to 7 March 2012 the respondent treated a family member, patient "AE" including prescribing medications on 10 occasions. This is subject to ground 4, particular 4. The respondent admits treating this patient and prescribing medication, but does not admit that the conduct amounts to unsatisfactory professional conduct. 19. On 21 May 2010 the Medical Council of NSW decided to hold s 150 proceedings and added breaches of condition 1 of his registration to the complaint to be referred to the Health Care Complaints Commission. A request was also made for the respondent to be assessed by a Medical Council of NSW appointed psychiatrist. 20. On 24 May 2011 the respondent wrote to Medical Council of NSW seeking variation of Condition1 so as to permit him to prescribe Schedule 8 and Schedule 4D medications to patients already initiated on a treatment plan by a specialist or hospital. He said in the letter that he thought that restrictions on his registration were only effective for one year and that therefore it expired in November 2010. 21. On 10 November 2011 the respondent contravened condition 150 of his registration by prescribing Oxycodone Hydrochloride 10 mg tablets to patient "Z". The respondent admits this contravention. This was a subject of ground 2, particular 2 and the respondent admitted the ground and particulars. 22. On 13 February 2012 the respondent contravened practice condition 1 of his registration in that he prescribed Temazepam 10 mg to patient "V". This is subject of ground 2, particular 3 and is admitted by the respondent. 23. The Medical Council of NSW wrote to respondent on 5 June 2012 notifying him that he had breached the practice condition by prescribing medication to the patient with terminal illness (patient Z) and informing him that the complaint was being referred to the Health Care Complaints Commission. 24. The letter also informed him that he was to be reviewed by a psychiatrist appointed by the Council pursuant to section 145E of the National Law (NSW) in relation to his suggestion that he stopped working in 2009 due to suffering depression/anxiety. He was then referred for assessment to Dr Westmore, psychiatrist. 25. On 7 June 2012 the respondent consented to Practice Condition 1 continuing on his registration pending the outcome of proceedings to be convened by the Medical Council pursuant to s 150 of the National Law (NSW). 26. The next day, 8 June 2012, the respondent again contravened Practice Condition 1 on his registration in that he prescribed Phenobarbitone 30 mg tablets for patient "Y". 27. The Medical Council notified the Health Care Complaints Commission on 25 June 2012 of its intention to hold the hearing under s 150 of the National Law to determine whether to suspend, or impose conditions on the respondent's registration. 28. Dr Westmore, the psychiatrist, released his report regarding the respondent on 25 June 2012. 29. The s 150 hearing took place on 12 July 2012. On 17 July 2013 the Medical Council wrote to the Health Care Complaints Commission referring the ground regarding non-compliance with condition 1 of the respondent's registration. It also advised of previous conditions imposed by s 150 proceedings and issues identified being: 1. Prescribing of Schedule 8 medication in breach of condition of registration; 2. The respondent's ability to cope with medical emergencies, given he has not undertaken CPR since 1994 and does not have oxygen or adrenaline at his surgery; and 3. The quality of his medical records. 1. The reasons of the decisions of s 150 proceedings were released on 10 August 2012. The report concluded in the summary; "The Delegates, after considering all of the evidence before them, did not considered it appropriate or in the public interest to leave respondent's registration free of conditions. Due to concerns regarding his clinical performance and knowledge it was considered appropriate to re-impose conditions to which the respondent had consented in 2009 and to impose further conditions on his registration that address the deficiency identified during the proceedings, and which would protect health and safety of the public." 1. The conditions imposed by the s 150 proceedings are as follows: ORDER Pursuant to section 'l50(1)(b) of the National Law (NSW) the delegates imposed the following conditions on Dr Ghannoum's registration: Practice Conditions 1. To not prescribe, possess, supply, administer handle or dispense any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). a. Unless this has already occurred, to attend the offices of the Pharmaceutical Services Unit of the NSW Department of Health by close of business on 30 July 2012 and surrender his authority under the provisions of the Poisons and Therapeutic Goods Regulation 2002 to have possession of, prescribe, supply, dispense, or administer any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). b. Any future change in his Schedule 8 / 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 Sen/ices Unit of NSW Health. 2. By 30 July 2012, the practitioner must: a. obtain and thereafter, continue to maintain sufficient supplies of oxygen and adrenaline to manage any medical emergencies which present to or arise at his rooms; b. Provide to the Medical Council of NSW evidence satisfactory to the Council which confirms that supplies of oxygen and adrenaline have been obtained; c. Post and maintain on the wall of his treatment room a sign, a copy of which is to be provided to the Council, which indicates the appropriate adult and paediatric dosages of adrenaline and the manner in which the drug is to be administered. 3. By 27 August 2012 the practitioner is to attend at his own expense at least one educational course approved by the Medical Council of NSW substantially dealing with Resuscitation Techniques. The practitioner must also provide the Medical Council of NSW with: a. Documentary evidence of enrolment in the course by 30 July 2012; b. Documentary evidence of satisfactory completion of the course, together with copies of any assessment results within 14 days of completion of the course. 4. To nominate a supervisor within the next 14 days to be approved by the Medical Council of NSW, to monitor and review his clinical practice and compliance with Conditions in accordance with Level 3 Supervision as contained with the Medical Council of NSW's Guidelines for Supervision (Policy PCH 7 5) The supervisor must be a Fellow of the Royal Australian College of General Practitioners. The supervisor is to be provided with a copy of the Council's Policy PCH 7.5, a copy of the Decision upon which these conditions are based and any reports the Medical Council of NSW deems appropriate. The practitioner is to be responsible for all costs associated with the supervision arrangement and is to ensure that: a. He and the supervisor meet face-to-face on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Medical Council of NSW that his nominated supervisor has been approved. b. Issues to be discussed at the meetings must include, but not be limited to the following: appropriate prescribing practices, appropriate pain management, drug & alcohol issues, medical record keeping, and management of emergencies in general practice. At each meeting the practitioner must also bring the complete records of five patients seen in the preceding fortnight and must ensure that his treatment of these patients is discussed. c. At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Medical Council of NSW. d. The supervisor forwards to the Medical Council of NSW, initially on a monthly basis, a Supervision Report in a format prescribed or approved by the Medical Council of NSW e. The supervisor informs the Medical Council of NSW immediately if there is any concern in relation to his compliance with the supervision requirements, compliance with other conditions of registration, clinical performance or if the supervisor relationship ceases. To authorise the supervisor to provide such information to the Medical Council of NSW. f. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Medical Council of NSW within 21 days of the cessation of the original supervisory relationship. 5. To provide the Medical Council of NSW with a copy of his Practice Conditions signed by or on behalf of his current employer, if any, within 7 days of receipt of these conditions, and/or prior to commencing any new employment. 6. Dr Ghannoum authorises and consents to any exchange of information between the Medical Council of NSW, the Pharmaceutical Services Unit of NSW Health and Medicare Australia such exchange is necessary to facilitate the monitoring of compliance with these conditions. 1. On 16 November 2012 the HCCC was notified by the Medical Council of NSW that the respondent had complied with the requirement to undertake CPR training. 2. In a letter of 15 August 2013 to the Health Care Complaints Commission among other things the respondent advised that his "place of employment" was Prime Medical Centre. However, it appears that it was still the same practice and he was practising solo. 3. From September 2012 Dr Fashka continued to provide supervision for the respondent and also provided reports for the Medical Council of NSW. 4. These proceedings were commenced by the Health Care Complaints Commission by a Complaint filed on 27 August 2014. 5. In October 2014 the respondent commenced medical practice as a sole practitioner in Bankstown and as at conclusion of the hearing on 22 July 2015 he was continuing to work solo there. 6. On 19 December 2014 Dr Ilchef, the psychiatrist, saw the respondent for the purpose of the report for the Medical Council. In his report of 30 December 2014 he noted that the respondent had not had a treating psychiatrist since Dr Lai in 2009. He recommended that there be a full review on his mental health by a psychiatrist including development of a treatment plan, review of his medication, consideration of alternative medication, consideration of referral for psychotherapy, and arrangement for six monthly review. 7. Dr Fashka continued providing supervision of the respondent until Dr Fashka withdrew from that role in February 2015 because other demands on his time. 8. On 5 March 2015 there was a further s 150 hearing and it was determined by the Council that it was not appropriate to take any action to change the existing conditions on the respondent's registration. They were continued. 9. The decision of the Medical Council as result of s150 proceedings was: DETERMINATION In considering the application of the provisions of sections 150 and 150C of the National Law (NSW) the delegates have had regard to whether any action is appropriate for the protection of the health or safety of any person or persons or for reasons otherwise in the public interest: After carefully considering all the material before these proceedings and for the reasons outlined in this written decision the delegates are satisfied that it is not appropriate to suspend or impose further conditions on Dr Ghannoum's registration. RECOMMENDATIONS The delegates make the following recommendations: 1. That Dr Ghannoum should be reviewed by the Council appointed psychiatrist after the Tribunal or in three months time and the report referred to the Health Committee for its consideration in regard to any further action; 2. That the Council appointed psychiatrist should be provided with additional psychiatric documentation in the next briefing (two letters from Dr Lal and one report from Dr Westmore), as well as a copy of this report; 3. That Dr Ghannoum should remain in active follow up with his GP, psychologist and psychiatrist and take their advice in regard to his treatment; 4. That Dr Ghannoum should attend to his continuing medical education with greater attention and in particular should seek opportunities in a collegiate context, such as workshops, seminars and conferences, where there is interaction and feedback. DISTRIBUTION OF THIS DECISION A copy of this decision is to be provided to: a. Dr Ghannoum b. Health Care Complaints Commission c. Mr lssa Rabaya of Withstand Lawyers d. The Council appointed psychiatrist, when briefed for Dr Ghannoum's next assessment Notice of this decision will be provided to the National Medical Board under s176 of the National Law (NSW). 1. The hearing of these proceedings in the tribunal was listed for 3 days on 23-25 March 2015. The Respondent sought an adjournment of the hearing on the first day, but the tribunal on the first day decided to proceed with the hearing that day and adjourn the remaining 2 days to dates be fixed by the Registrar. 2. The hearing continued on 21 and 22 July 2015 and at the conclusion orders were made for written submissions to be filed by the parties. The HCCC filed and served its submissions on 28 July 2015. He Respondent's submissions were filed and served on 4 August 2015. Ground 1- Prescription of Schedule 4D and Schedule 8 Drugs 1. Paras 139B(1)(a) & (l) of the National Law provide: 139B(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. ……………………………………………………………… (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. The respondent conceded his conduct outlined in ground 1 constituted unsatisfactory professional conduct. He denied that it constituted professional misconduct. The gist of the complaint was that he prescribed Benzodiazepines to 19 different patients in the circumstances set out in the following particulars: BACKGROUND TO COMPLAINT ONE At all relevant times, the practitioner practised as a general practitioner at 2/282-286 Guildford Road, GUILDFORD NSW 2161 and Prime Medical Care, 4/972 Hume Highway, BASS HILL NSW 2197. PARTICULARS OF COMPLAINT ONE Patient A 1. The practitioner prescribed a Benzodiazepine (Valium) for Patient A as set out in Schedule A to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions in circumstances where the prescribing was contraindicated as it was known or should have been known to the practitioner that Patient A was a methadone addict; b. Without taking an appropriate medical, physical or psychological examination; c. Where the duration and/or frequency at which tie medication was prescribed was in excess of recognised therapeutic standards as to what is medically appropriate; d. Without providing counseling and/or advice about drug dependence and/or other treatment interventions. Patient B 2. The practitioner prescribed Benzodiazepines (Valium, Serepax and Temazepam) for Patient B as set out in Schedule B to the complaint: a. At a frequency in excess of recognised therapeutic standards as to what is medically appropriate in circumstances where: i. It was known or should have been known to the practitioner that Patient B was dependent on benzodiazepines; ii. The practitioner failed to provide counselling and/or advice about drug dependence and/or other treatment interventions. b. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient. Patient C 3. The practitioner prescribed Benzodiazepines (Valium, Serepax and Nitrazepam) for Patient C as set out in Schedule C: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions in circumstances where the practitioner failed to take an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; b. Without providing counseling and/or advice about drug dependence and/or other treatment interventions', c. In an inappropriate combination of Benzodiazepines. Patient D 4. The practitioner prescribed Benzodiazepines (Serepax, Valium and Temazepam) for Patient D as set out in Schedule D: a. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; b. At a frequency in excess of recognised therapeutic standards as to what is medically appropriate; c. Without providing counseling and/or advice about drug dependence and/or other treatment interventions; d. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; e. In an inappropriate combination of Benzodiazepines. Patient E 5. The practitioner prescribed Benzodiazepines (Valium and Serepax) for Patient E as set out in Schedule E to the complaint: a. At a frequency in excess (lf recognised therapeutic standards as to what is medically appropriate in circumstances where: i. It was known or should have been known to the practitioner that Patient E was dependent on benzodiazepines; ii. The practitioner failed to provide counseling and/or advice about drug dependency and/or other treatment interventions. b. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; c. At a frequency in excess of recognised therapeutic standards as to what is medically appropriate; d. In a quantity and/or dosage in excess of recognised therapeutic standards as to what is medically appropriate; e. Without providing appropriate counseling in relation to drug dependence; f. In an inappropriate combination of Benzodiazepines. Patient F 6. The practitioner prescribed Benzodiazepines (Serepax, Valium and Alodorm) for Patient F as set out in Schedule F to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions in circumstances where the prescribing was contraindicated as it was known or should have been known to the practitioner that Patient F was a methadone addict and had a complex psychiatric history; b. Without taking an appropriate history from the patient and/or conducting inappropriate physical or mental examination of the patient; c. Without appropriately managing drug dependence issues including appropriate referrals to an appropriate specialist or counseling and/or advice regarding drug dependence', d. In an inappropriate combination of Benzodiazepines. Patient G 7. The practitioner prescribed Benzodiazepines (Valium, Serepax and Nitrazepam) for Patient G as set out in Schedule G to the complaint: a. At a frequency in excess of recognised therapeutic standards to what Is medically appropriate; b. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; c. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; d. Without providing counseling and/or advice about drug dependence and/or other treatment interventions; e. ln an inappropriate combination of Benzodiazepines. Patient H 8. The practitioner prescribed Benzodiazepines (Serepax, Valium, Temaze and Mogadon) for Patient 1-1 as set out in Schedule I-I to the complaint; a. At a frequency in excess of recognised therapeutic standards to what is medically appropriate; b. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; c. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient. d. Without providing counseling and/or advice about drug dependence and/or other treatment interventions; e. In an inappropriate combination of Benzodiazepines. Patient I 9. The practitioner prescribed a Benzodiazepine (Oxazepam) to Patient I as set out in Schedule 1 to the complaint: a. Without exercising appropriate medical judgement as to whether to issue such prescriptions; b. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; c. Without appropriately managing drug dependence issues. Patient J 10. The practitioner prescribed Benzodiazepines (Serepax and Mogadon) to Patient I as set out in Schedule I to the Complaint: a. Without exercising appropriate medical judgement as to whether to I ssue such prescriptions; b. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; c. Without appropriately managing drug dependence issues; d. In an inappropriate combination of Benzodiazepines. Patient K 11. The practitioner prescribed Bepzodiazepines, (Serepax, Valium, Temaze and 'Mogadon) to Patient K as set out in Schedule K to the complaint: a. Without exercising appropriate medical judgement as to whether to issue such prescriptions; b. At a frequency in excess of recognised therapeutic standards to what is medically appropriate; c. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; d. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; e. Without providing counseling and/or advice about drug dependence and/or other treatment interventions; f. In an inappropriate combination of Benzodiazepines. Patient L 12. The practitioner prescribed Benzodiazepines (Serepax, Valium and Mogadon) for Patient L as set out in Schedule L to the complaint: a. Without exercising appropriate medical judgement as to whether to issue such prescriptions; b. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; c. Without appropriately managing drug dependence issues: d. In an inappropriate combination of Benzodiazepines. Patient M 13. The practitioner prescribed Benzodiazepines (Valium, Serepax and Mogadon) for Patient M as set out in Schedule M to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions; b. At a frequency in excess of recognised therapeutic standard as to what is medically appropriate; c. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; d. Without appropriately managing drug dependence issues', e. In an inappropriate combination of Benzodiazepines. Patient N 14. The practitioner prescribed Benzodiazepines (Serepax and Valium) for Patient N as bet out in Schedule N to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions; b. Without taking an appropriate history from the patient and/or conducting an appropriate physical-or mental examination of the patient. c. Without appropriately managing drug dependence issues', d. In an inappropriate combination of Benzodiazepines. Patient O 15. The practitioner prescribed Benzodiazepines (Serepax, Valium, Temaze, Normison and Mogadon) for Patient O as set out in Schedule O to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions; b. At a frequency in excess of recognised therapeutic standards as to what is medically appropriate; c. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; d. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; e. Without appropriately managing drug dependence issues; f. In an inappropriate combination of Benzodiazepines. Patient P 16. The practitioner prescribed Benzodiazepines (Serepax and Temaze) to Patient P as set out in Schedule P to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such a prescription in circumstances where: i. the practitioner failed to take an adequate medical history from the patient; ii. the practitioner failed to conduct an appropriate physical and mental examination of the patient; iii. without taking adequate steps to identify or exclude other physical or psychological conditions which may have caused the patient's symptoms. b. Without providing counseling and/or advice about drug dependence and/or other treatment interventions; c. ln an inappropriate combination of Benzodiazepines. Patient Q 17. Between 5 September 2007 and 13 June 2008 the practitioner prescribed Benzodiazepines (Temazepam and Oxazepam) to Patient Q as set out in Schedule Q to the Complaint in circumstances where he failed to provide the patient with appropriate counseling in relation to drug dependence issues Patient R 18. The practitioner prescribed Benzodiazepines (Serepax and Valium) to Patient R as set out in Schedule R to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions; b. At a frequency an excess of recognised therapeutic standards as to what is medically appropriate; c. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; d. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient; e. Without providing counseling and/or advice about drug dependence ' and/or other treatment interventions. Patient S 19. The practitioner prescribed Benzodiazepines (Serepax , Valium and Normison) to Patient S as set out in Schedule S to the complaint: a. Without exercising appropriate medical judgment as to whether to issue such prescriptions; b. At a frequency in excess of recognised therapeutic standards as to what is medically appropriate; c. For a duration in excess of recognised therapeutic standards as to what is medically appropriate; d. Without taking an appropriate history from the patient and/or conducting an appropriate physical or mental examination of the patient: e. Without providing counseling and/or advice about drug dependence and/or other treatment interventions. 1. At the time of the prescriptions particularised the Respondent had been practising for 2 to 6 years as a general practitioner. It was 5 to 9 years since he had graduated in Medicine. 2. Dr Orman is an eminent medical practitioner with a very impressive background in terms of qualifications and experience as a medical practitioner, an expert and an educator of Medical practitioners and others. She has 30 years of experience as a general practitioner. She is a clinical examiner for the Australian Medical Council (General Practice). 3. Dr Orman's evidence in 2 reports and in her oral evidence to the Tribunal establishes that the respondent's prescribing of benzodiazapines to the patients the subject of ground 1 was contrary to accepted caution with prescribing benzodiazapines generally including for insomnia, anxiety disorders, and drug seeking patients. There were 11 patients for whom the respondent prescribed benzodiazepine medication on 10 or more occasions. Six of these received more than 20 such prescriptions. One of them was given 72 such prescriptions. 4. Dr Orman's reports made detailed findings of inadequacies in the respondent's process of prescribing benzodiazepine medications from the 19 patients' medical records, the prescription details and other documentary evidence with the aid of published guidelines. Her conclusion was that the prescribing of benzodiazepine medications for each of 18 of the patients was conduct "significantly below the standard" expected of a practitioner of equivalent training and experience at the time of the prescribing of such medications and for one patient was "below" the standard expected of a practitioner of equivalent training and experience at the time. 5. The prescribing conduct of the Respondent under this ground in respect of those 18 patients involved prescribing addictive medications without proper care and investigation as to whether they were suitable and needed, and considerable risk to patients of addiction to prescribed medications, of the prescribed drug feeding an existing addiction, or of possible complications from the combination of such prescribed medication with an existing drug addiction, where he had not properly contemplated or investigated for such an existing addiction. 6. There is some authority that a medical practitioner who handles the prescribing of drugs of addiction recklessly and showing a disregard of the law is not fit to practice and guilty of professional misconduct Spicer v NSW Medical Council (unreported CA No 3 of 1981 per Hope JA (Reynolds and Hutley JJA agreeing)). In this case it certainly was very serious unsatisfactory professional conduct. Ground 2 – Breaches of Condition of Registration 1. The admitted facts in relation to complaint 2 are as follows:- 1. On 23 November 2009 the practitioner agreed to conditions being imposed on his registration under section 140 of the Medical Practice Act 1992 (repealed)("MP Act") in lieu of proceedings under section 66 of the former MP Act and included: To not prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D or schedule 4D derivative). ("Practice Condition 1") 1. Following a hearing pursuant to section 150 of the National Law on 12 July 2012, the Medical Council determined on 10 August 2012 to impose under section 150 the conditions to which the practitioner had consented in 2009 and to impose further conditions on his registration and included Practice Condition 1. 2. Between 4 February 2010 and June 2012, the respondent contravened the practice condition 1 on his registration in that he prescribed Phenobarbitone 30 mg tablets for patient "Y" on 4 February 2010, 23 October 2010(2 prescriptions), 7 March 2011 (2 prescriptions), 18 May 2011, and 8 June 2012. 3. On 10 November 2011 the respondent contravened practice condition 1 on his registration in that he prescribed Oxycodone Hydrochloride 10 mg tablet to patient "Z". 4. on 13 February 2012 the respondent contravened practice condition 1 on his registration in that he prescribed Temazepam 10 mg tablets to patient "V" 1. A contravention of a condition of a medical practitioner's registration is unsatisfactory professional conduct (Per para 139B(1)(c) of the National Law). 2. These 9 instances were each unsatisfactory professional conduct. The Court of Appeal has emphasised the seriousness of breaching conditions of Registration (Prakash v Health are Complaints Commission [2006] NSWCA 153 at [74]). Ground 3 - Inadequate Patient Records 1. The respondent concedes the facts alleged and submits that these matters, although they constitute unsatisfactory professional conduct, do not constitute professional misconduct. 2. The particulars in relation to complaint 3 that are admitted cover medical records of the 27 patients and they are as follows: - BACKGROUND TO COMPLAINT THREE The practitioner has been guilty of unsatisfactory professional conduct within the meaning of section 1398 (1)(b) and/ or (1) of the Nat/or/a! Laws in that he has: (i) contravened the Health Practitioner Regulation (New South Wales, Regulation 2010; and/or (ii) contravened the Medical Practice Regulation 2003 (repealed); and/or (iii) contravened the Medical Practice Regulation 2008 (repealed); and/or (iv) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. COMPLAINT THREE As per Complaint One. Patient A 1. Between 8 January 2O07.and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient A in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history', ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state; b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; 12 c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's Case. Patient B 2. Between 14 May 2005 and 19 November 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 and/or the Medical Practice Regulation 2008(repealed) Clause 4 and schedule 1, Clauses 1 and 2 in respect of his medical records for Patient B in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination pf the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case Patient C 3. Between 12 October 2006 and 4 March 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient C in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient': physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case, Patient D 4. Between 30 September 2006 and 16 April 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient D in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner': diagnosis and treatment of the patient including: i. The patient's medical history; ii. sufficient history of previous or ongoing drug use by the patient other than that press' gibed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or of alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient E1 5. Between 1 November 2007 and 16 January 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient E1 in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including'. i. The patient's: medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient F 6. Between 10 February 2007 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 4, Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient F in that he failed to record; a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. A the patient's Medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner); iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or of alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's Case. Patient G 7. Between 29 October 2007 and 1 October 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 and/or the Medical Practice Regulation 2008(repealed) Clause 4 and Schedule 1, Clause 1 in respect of his medical records for Patient G in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history', ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical 'and mental state. b. Any advice, information or counseling relating to drug dependence or of alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case, Patient H 8. Between 16 October 2007 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient H in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient I 9. Between 20 January 2006 and 15 January 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 1, Clauses 1 and 2 in respect of his medical records for Patient I in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient': physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient': Case. Patient J 10. Between 18 September 2007 and I 1 June 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 1, Clauses land 2 in respect of his medical records for Patient I in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner: iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to .continue management of the patient's base. Patient K 11. Between 21 October 2006 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, 18 Clauses 1 and 2 in respect of his medical records for Patient K in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of thy patient's Case. Patient L 12. Between 6 April 2007 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule clauses 1 and 2 in respect of his medical records for Patient L in that he failed to record: a. Any information known to the practitioner that is relevant to bee practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or ' alternative drug treatment; 19 c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient M 13. Between 18 January 2007 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses a and 2 in respect of his medical records for Patient main that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient': physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case Patient N 14. Between 25 June 2007 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect (if his medical records for Patient N in that he failed to: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental states. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient O 15. Between 16 February 2004 and 31 January 2009, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 4 and Schedule 2, Clauses 1 and 2 and/ or the Medical Practice Regulation 2008(repealed) Claude 4 and Schedule 1 , Clauses 1 and 2 in respect of his medical records for Patient O in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner', iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or of alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient P 16. Between 7 March 2007 and 7 April 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient P in that he failed to record: a. Any information known to the practitioner that in relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient Q 17. Between 5 September 2007 and 3 March 2010 8, the practitioner contravened the Medical Practice Regulation 2008 (repealed) Clause 4 and Schedule 1, Clauses 1 and 2 in respect of his medical records for Patient Q in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; 22 iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient R 18. Between 10 March 2005 and 19 November 2007, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient R in that he failed to: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history', ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's Case. Patient S 19. Between 4 October 2006 and 31 August 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, 23 Clauses 1 and 2 in respect of his medical records for Patient S in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient': physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient T 20. On 3 March 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient T, in that he failed to record any information known to the practitioner that is as relevant to the practitioner's diagnosis or treatment of the patient including: a. The patient's medical history including recording of allergies; b. Any examinations carried out on the patient; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient U 21. Between 16 July 2007 and 1 September 2008, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient U in that he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependences alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's Case. Patient V 22. Between 8 October 2011 and 22 October 2012, the practitioner contravened the Health Practitioner Regulation (NSWI Regulation 2010 Clause 7 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient V in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's Case. Patient W 23. Between 21 March 2006 and 16 October 200'8, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 and/or the Medical Practice Regulation 2008(repealed) Clause 4 and Schedule 1, Clauses 1 and 2 in respect of his medical records for Patient W in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient': physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's Case. Patient X 24. Between 14 June 2006 and 1 September 200B, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 4, Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient X in that, he failed to record: a. Any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history: ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient Y 25. Between 23 October 2010 and 20 May 201 1, the practitioner contravened the Health Practitioner Regulation (NSWI Regulation 2010 Clause 7 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient Y in that he failed to record: a. Many information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: i. The patient's medical history; ii. Sufficient history of previous or ongoing drug use by the patient other than that prescribed by the practitioner; iii. Details of any examination of the patient's physical and mental state. b. Any advice, information or counseling relating to drug dependence or alternative drug treatment; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient Z 26. From approximately March 2011, the practitioner contravened the Health Practitioner Regulation (ask Regulation 201 0 Clause 7 and Schedule 2, Clauses 1 and 2 in respect of his medical records for Patient Z in that he failed to record: a. The patient's medical history; b. The patient's pain management regime prior to 11 November 2011; c. Sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. Patient AA 27. Between 18 March 2008 and 31 January 2009, the practitioner contravened the Medical Practice Regulation 2003 (repealed) Clause 5 and Schedule 2, Clauses 1 and 2 and/or the Medical Practice Regulation 2008(repealed), Clause 4 and Schedule 1, Clauses 1 and 2 in respect of his medical records for Patient as in that he failed to record any information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient including: a. Notes which are legible; b. Details of any examination of the patient's mental or physical state; c. Plans, nature and results of treatment of the patient; d. Any advice, information or counseling relating to drug dependence.. 1. The Medical Practice Regulation 2003 applied from 2003 to 31 August 2008. Clause 5 required a medical practitioner "engaged in the provision of medical services" to "in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner…" . Clauses 1 & 2 of Schedule 2 provided: MEDICAL PRACTICE REGULATION 2003 - SCHEDULE 2 SCHEDULE 2 - Records relating to patients (Clause 5(1) & (2), 1 Information to be included in record A record must contain sufficient information to identify the patient to whom it relates. A record must include: a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), and b) particulars of any clinical opinion reached by the registered medical practitioner, and c) any plan of treatment for the patient, and d) particulars of any medication prescribed for the patient. The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient. 4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the registered medical practitioner who is treating the patient: the date of the treatment, the nature of the treatment, the name of any person who gave or performed the treatment, the type of anaesthetic given to the patient (if any), the tissues (if any) sent to pathology, the results or findings made in relation to the treatment. 5) Any written consent given by a patient to any medical treatment (including any medical or surgical procedure) proposed by the registered medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content 1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. 2) A record must include sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's 3) case. 4) All entries in the record must be accurate statements of fact or statements of clinical judgment. 1. The Medical Practice Regulation 2008 applied from 1 September 2008 to 30 June 2010. Clause 4 required a medical practitioner "engaged in the provision of medical services" to "in accordance with this Part and Schedule 1, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner…" Clauses 1 & 2 of Schedule 1 set out the same requirements as clauses 1 & 2 of Schedule 2 to the 2003 Regulation. 2. The Health Practitioner Regulation (New South Wales) Regulation 2010 applied from 1 July 2010. Clause 7 required a medical practitioner "engaged in the provision of medical services" to "in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner…". Clauses 1 & 2 of Schedule 2 set out requirements that are for purposes of these proceedings the same as those in the 2003 and 2008 Regulations. 3. The respondent's failures to comply with the requirements of the applicable regulation for patient medical records are by para 139B(1)(b) of the National Law unsatisfactory professional conduct. 4. In every one of the 27 patient records particularised for the ground, the Respondent did not comply with the requirements of the applicable regulation. The non compliance was extensive. He demonstrated no regard for the legal requirements. The evidence of Dr Orman also establishes that with 23 of the patient records that were subject of the ground, the record making was "significantly below the expected standard for a practitioner of equivalent training and experience at the time". Two others were below that standard (but not significantly) but one of those 2 attracted her "strong criticism". 5. His conduct in not making proper records for these patients put them at considerable risk. This conduct of the practitioner in the practice of medicine was also improper and unethical and comes within para 139B(1)(l) of the National Law and for that reason too is unsatisfactory professional conduct. 6. The ground and unsatisfactory professional conduct have been established. Ground 4 – Inappropriately Treating Family Members 1. Ground 4 and the particulars are as follows: Patient AB (1) Between 15 September 2010 and 20 March 2012, the practitioner inappropriately treated a family member, namely patient AB, including the prescribing of medication. Patient AC (2) Between 1 September 2010 and 18 April 2012, the practitioner inappropriately treated a family member, namely patient AC, including the prescribing of medication. Patient AD (3) Between 18 August 2010 and 15 February 2011, the practitioner inappropriately treated a family member, namely patient AD, including the prescribing of medication. Patient AE (4) Between 20 December 2010 and 7 March 2012, the practitioner inappropriately treated a family member, namely patient AE, including the prescribing of medication. Patient AF (5) Between 18 August 2010 and 28 December 2011, the practitioner inappropriately treated a family member, namely patient AF, including the prescribing of medication. 1. The Medical Board of Australia publication "Good Medical Practice: Code of Conduct for Doctors in Australia was published in 2009. Section 3.14 States under the heading " Personal Relationships": Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever that is the case, good medical practice requires recognition and careful management of these issues. 1. The Medical Council of New South Wales Policy on "self treatment and treating relatives" was created in August 2001 and revised in July 2010. It provides: 1. Background 1.1. The Medical Council of New South Wales is of the view that wherever possible, medical practitioners should avoid treating members of their immediate family, because in these circumstances; • Professional objectivity may be compromised and their judgment may be influenced by the nature of their relationship with the patient. • Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination. • The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination when the medical practitioner is a family member. • Patient autonomy may be compromised when a medical practitioner treats a member of their family. The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family. 1.2. The Council is also of the view that all medical practitioners should have their own independent General Practitioner and should not initiate treatment for themselves. 2. Policy The Council endorses the following general principles; 2.1. All medical practitioners should have their own, independent General Practitioner. 2.2. It is not advisable for medical practitioners to initiate treatment (including prescribing) for themselves or immediate family members. 2.3. In emergency situations or isolated settings where there is -no help available, medical practitioners may treat themselves or family members until another medical practitioner becomes available. 2.4. it is not advisable for medical practitioners to serve as primary or regular care providers for immediate family members, although there are circumstances in which they may work together with an independent medical practitioner to maintain established treatment. 2.5. it is not advisable for medical practitioners to issue certificates for t hemselves or members of their family. 1. Dr Orman reported that although not documented till 2009 the practice advocated in the 2009 document was" an explicit statement of an element of professional conduct" long understood by members of the medical profession. She said, though, that "most medical practitioners would consider it appropriate to provide a family member with a referral or a repeat prescription in circumstances where those things could not easily be obtained from their usual medical practitioner." 2. Dr Orman in her report said that in her opinion the conduct of the respondent of treating each of his wife and his 4 children was below the standard reasonably expected of a practitioner of an equivalent level of training or experience at the time, but she did not consider any of those 5 histories of treatment was "significantly below that standard. It therefore does not come within the conduct in para 139B(1)(a) of the National Law and is not thereby taken to be unsatisfactory professional conduct. 3. In cross examination she said the issues are "very difficult and a bit grey". She said, "Up to the early 90's it was considered OK for GP's to treat members of the family. By 2007 most would know it was considered inappropriate unless you just needed a repeat script or just a referral". She said that as a general rule it is not appropriate for a medical practitioner to treat his or her spouse because of issues of privacy and confidentiality. She said it can be especially problematic in relation to psychological well-being and if there are relationship problems between the spouses. 4. Although the practitioner clearly and repeatedly did not comply with the advice of the Medical Council on this issue and his conduct was below the standard reasonably expected of a practitioner of an equivalent level of training and experience, the evidence did not establish that his conduct came within the definition of professional misconduct in s 139E of the National Law or any of the paragraphs of Subsection 139B(1) of the National law that are by that subsection included in unsatisfactory professional conduct. 5. The conduct was not shown to be unsatisfactory professional conduct. Ground 5 – Professional Misconduct Allegation 1. Ground 5 is that the respondent is guilty of Professional Misconduct under s 139E of the National Law and that he has 1. Engaged in Unsatisfactory Professional Conduct of a sufficient and severe nature that justify suspension or cancellation of the respondent's registration, or 2. Engaged in more than one instance of Unsatisfactory Professional Conduct that, when the instances are considered together, amount to a conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration. 1. The particulars relied upon in relation to Complaint 5 are those proved in relation to complaints 1, 2, 3 and 4. 2. The Ground 4 was not proved to be unsatisfactory professional conduct. Grounds 1, 2, and 3 were each serious unsatisfactory professional conduct and together, could justify suspension of the respondent's registration and therefore under S 139E of the National Law Ground 5 is proved and constitutes professional misconduct. The Respondent's Case in Relation to Ground 1 1. The submission of the respondent is the prescriptions of the drugs of addiction were to patients complaining of "anxiety", "depression", or "insomnia". In his unsworn statement of 10 February 2015 he said that prior to the concerns about his prescribing of Schedule 4D and Schedule 8 drugs, "I genuinely believed I was prescribing appropriately and in accordance with appropriate peer Standards." He denied prescribing on demand "or in a way which I thought was dangerous." But given his medical records and his failure to give sworn evidence and be available for cross examination, the Tribunal does not accept that evidence. 2. The evidence by way of the respondent's medical records of consultations with each patient a subject of this complaint do not support such submissions. That is because many of the respondent's records of consultations where a Schedule 4D or a Schedule 8 drug were prescribed did not include any patient complaint, a diagnosis, patient health history from patient or doctor, medication history, or justification for a diagnosis or the prescription. Where a diagnosis is stated it is not recorded whether it is the patient's complaint/self diagnosis or the respondent's diagnosis and there is no record of any independent assessment by the respondent. 3. They appear to include no enquiry or independent assessment by him as to whether the patient was using another addictive substance, no record of any medical, physical or psychological examination, no recommendation for counselling or provision of counselling or recommendation for other treatment interventions, no provision of information about available alternative treatments or therapies, no re-investigation or recognition of existing addictions, and no record of any history of the patient or appropriate mental or physical examination of the patient. Many of the records of the patient consultation where Benzodiazepines were prescribed for the patient comprise only two or three words and sometimes even those words are illegible, although the particulars include only one allegation of an illegible record. 4. It is also submitted on behalf of the respondent that since he returned to practice in August 2010 he has not resumed or reverted to the conduct with respect to prescription of drugs that was the essence of ground 1. No particular consultation was shown to be a continuance of that conduct, and the respondent has clear signs in his surgery telling the patients that he will not prescribe such drugs. 5. He says in his unsworn statement he is truly remorseful "for my former prescribing practice" and says: "I let myself and my colleagues down". He does not acknowledge any breach of his duty to the subject patents. 6. The Respondent also relies upon 5 character references from a patient and 4 other medical practitioners including his supervisor Dr Aloe and a surgeon, Dr Sanki. None of these people purport to be aware of the complaints raised against the Respondent in these proceedings. None of them comments on his practice in prescribing Schedule 4D and Schedule 8 drugs or the standard of his patient records. 7. His friend of 20 years, Dr Aloe, describes him as "very hard working", "very caring" and "modest" and "a proper practitioner who wants to help his patients and the community". He says after some lengthy discussions, "He showed very eager to change and desire to move positively forward." 8. The patient, who has known him more than12 years, speaks of "high quality care and very compassionate doctor", "trustworthy" and "highly recommended family doctor and very well known in the community". Others describe him as "very caring", " trustworthy", "kind", "sincere", "well known in the community", "trustworthy" and "a highly recommended family doctor" 9. Dr Sanke has known him 20 years and the Respondent has referred patients to Dr Sanki for surgery. He says the Respondent was "a very dedicated family doctor" and "his patients adored him". 10. The references have little relevance to the grounds in the proceedings and are of very limited weight. The Respondent's Case Regarding Ground 2 1. Patient "Z" was suffering from pancreatic cancer and the expert witness for the Health Care Complaints Commission, Dr Orman, confirmed that the two prescriptions of Oxycodone Hydrochloride were clinically appropriate and also confirmed the prescription of Temazepam was for patient "V" was clinically appropriate. In addition, Dr Orman confirmed that the prescriptions for the patient "Y" were evidently for treatment of epilepsy, not "anxiety" and "depression", or "insomnia" although "most practitioners prefer more recent antiepileptic drugs, that appear to be effective in controlling the epilepsy". 2. The evidence does not provide any reasonable explanation why with patient Z the Respondent did not, instead of prescribing in breach of practice Condition 1, call an after hours medical service to attend and give a prescription, or phone the hospital where she had been treated to ask for a registrar to issue a repeat prescription for a family member to collect or contact her treating oncologist to give a repeat prescription for collection or to fax it to a pharmacy for the medication to be collected by a family member. 3. In a statement of 10 February 2015, the respondent said: The restrictions on prescribing the S4D and S8 medication were imposed on 23/11/09. And, solely due to my psychiatric illness, that caused the misinterpretation of the timeframe of the restrictions which were thought to be (the restrictions) for only one year, and that mistake was caused by the misinterpretation of the timeframe of the restrictions. 1. That statement was unsworn and he was not available for cross examination. There was no "timeframe" on the agreed condition of his registration that he must not prescribe Schedule 8 or Schedule 4D medications. It was not expressed to have any time limit. Presumably he read the condition when the medical council informed him of the decision of 10 November 2009. He read and signed it when he consented to it on 23 November 2009. His solicitors sent it to the Medical Board with their letter of 27 November 2009. He surrendered his authority to prescribe or handle those drugs on 4 December 2009 and no other authority was issued to him. He presumably read the letter to him by the Board of 15 December 2009 confirming the conditions, which include para 1(b) which is: Any future change in his Schedule8/Schedule 4D authority must be in accordance with the NSW Medical Board's protocol. This must include consultation with the NSW Medical Board prior to the submission of any variation application to the Pharmaceutical Services Branch. 1. His conduct of breaching the conditions by issuing one prescription on 4 February 2010 and 2 on 23 October 2010 is not consistent with him abstaining from prescribing those drugs for a year commencing 23 November 2009. He told his solicitors before their letter of 14 July 2010 to the medical Council advising that he hadn't prescribed in the period 7 December 2009 to 30 April 2010 that he hadn't prescribed in that period, but that was untrue. (He prescribed on 4 February 2010). In his letter of 18 July 2010 to his solicitors he denied any prescribing since June 2009 and again denied it in his letter of 27 July 2010 to the Medical Council. His denials were untrue. 2. He wrote to the Medical council on 7 March 2011 confirming he would comply with the condition, but the same day he issued 2 prescriptions of Phenobarbitone in breach of the condition. 3. On 7 June 2012 the respondent signed a consent for the Practice Condition 1 to remain in force pending a s150 hearing. But the next day he breached the condition. 4. It appears from the evidence that the first time he raised the allegation that he thought the condition applied for only 12 months was not until his letter to the Medical Council on 24 May 2011. A year later on 23 May 2012 he had a telephone conversation with Nari Choi of the Medical Council of NSW and she recorded: "Dr Ghannoum was confused as he was under the impression the restriction had been lifted back in 2011. I stated that I would need to refer back to his files for further information. He said he would fax to the Council a copy of Medicare Australia's letter that confirmed that." 5. Clearly if he thought the condition would have applied for only 12 months, it would have expired in November 2010; not in 2011. Clearly expiry of any ban imposed by Medicare on paying benefits to him was not about Practice Condition 1 on his registration. It is noted that Medicare also required the respondent to repay about $95,000.00 and that amount has been repaid. 6. The evidence is not sufficient to support a finding that at any time the respondent believed that the condition applied for only one year from 23 November 2009 or that it was not expressed to apply indefinitely. The Tribunal does not accept the respondent's claim that he believed the condition applied only for one year. Nor does the evidence establish that he believed because of the Medicare communication that the practice condition had been lifted. 7. The Tribunal finds that on each of the 9 occasions the respondent prescribed in breach of Practice Condition 1, he knew his conduct was a breach of the condition. This conduct was particularly serious. The Respondent's Case Regarding Ground 3 (Medical Records) 1. The respondent was a subject of almost continuous professional supervision since September 2012. He has adopted a software system which prompts the creation of proper typed patient records. It was submitted for the respondent that the evidence of Dr Fashka confirmed proper records with respect to individual patients at least until the time he ceased to supervise the respondent on 7 February 2015. 2. The supervision reports of Dr Fashka in evidence however, noted relevant matters in this regard. It is noted that the instances of inadequate records the subject of this ground covered the period for 2005 to June 2009 and the issue of his inadequate records was raised with him by the Medical Council in or before September 2009 because of a complaint by Dr Tony Webber. The report for September 2012 says that Dr Fashka noted "some lack of knowledge of the standard that one expects from GP's in Australia" and "some lack of knowledge in proper documentation". At that time the respondent had been practising as a general practitioner for about 8 years and had been on notice of the concerns with his medical records for 3 years. The report of October 2012 indicates that Dr Fashka discussed with the respondent medical record keeping and structural documentation. It appears that on Dr Fashka's recommendation the respondent purchased G Murtagh's "General Practice", fifth edition. Dr Fashka noted in his report of October 2012 that was "some improvement in documentation. He needs to write more details and follow the proper structure of consultation." In his report for December 2012 Dr Fashka noted that there been some "improvement in documentation". In January 2013 Dr Fashka reported that "there had been quite improvement on documentation and care plans". He also noted "a better recording and documentation –structural method". 3. In May 2013, Dr Fashka reported that the respondent "needs improvement in documentation". In July, Dr Fashka reported "need to improve on documentation". The supervision reports of Dr Fashka show that even in July 2013 he was discussing with the respondent the keeping of systematic and proper documentation and notes that could be used by another practitioner who assumed care of the patient. In his report of 10 August 2013 Dr Fashka said "he is keeping reasonable records". He reported that at the meeting on 21 August 2013 he had again discussed the issue of proper documentation and records that are clear so that another health practitioner can understand them for the purpose of assuming the care of the patient. There were further similar discussions between Dr Fashka and the respondent at the meeting of 11 September 2013. By then it was more than a year since the Medical Council had raised the issue of inadequate medical records with him and he had been practising for 9 years. 4. In October 2013 Dr Fashka reported discussing with the respondent "proper documentation" including "structures" and "clarity" and in November ""progress notes". On 18 December 2013 he inspected 5 patient records and discussed with the respondent "proper documentation". On 15 January 2014 Dr Fashka spoke about "The importance of records as has to be clear if any other health professional reads it." On 19 February they looked at 5 patient records and Dr Fashka spoke about the importance of good record keeping. On 21 April 2014 they looked at 5 patient records and Dr Fashka spoke about the importance of documentation and management. On 21 May 2014 they looked at 5 patient records and Dr Fashka spoke about proper documentation. On 18 June 2014 they looked at 5 patient records and Dr Fashka spoke about "proper documentation, medical record keeping and proper prescribing". On 24 July 2014 they looked at 5 patient records and Dr Fashka spoke about "proper documentation and record keeping". On 14 August 2014 they looked at patient records and Dr Fashka spoke about "Medical Records – Structured, detailed, proper." On 21 January 2015 they looked at 5 patient records and Dr Fashka spoke about "better documentation". By then it was more than 2 years since the Medical Council had raised the issue of inadequate medical records with the respondent and he had been practising for more than 10 years. 5. One advantage of the computerised system is that it prompts the practitioner to insert various information in respect of each consultation and requires insertion of the information in sequence. It requires each item to be completed before moving to the next. However, such a system cannot guarantee complete compliance with the medical record requirements of the Regulation. Every consultation is different and whether there is a complete compliant record of the consultation will still depend on the practitioner. 6. Although the respondent reverted to computerised typed medical records for his patients, those that are in evidence show that even with computerised system, although the records have improved, his records of patient consultations are very minimalist. 7. The tribunal was concerned to hear from the cross examination of Dr Fashka that for his reviews of medical records as part of his supervision of the Respondent, the selection of records was random on only 2 occasions, when Dr Fashka chose the records. Unfortunately on every other occasion the records for inspection were chosen by the respondent. 8. On the evidence the Tribunal cannot have any confidence that the respondent without supervision will ensure that his patients' medical records comply with the requirements of the Regulation. The Tribunal finds that the respondent still does not accept the reasons why medical records need to comply with the Regulation. Respondent's Case in Respect of Ground 4 1. In his unsworn statement of 10 February 2015 the respondent says that he was unaware of the "views of the profession "about treating family members. But he says that at the time he treated his wife and children they each had his or her own general practitioner. He does not say why that was so. He says that he treated them only "for convenience and only in relation to minor-type ailments". However, in the absence of sworn evidence, an opportunity for cross examination of him, corroboration of his allegation that they each had a general practitioner, and evidence to support his allegation of "only minor-type ailments", the Tribunal does not rely on those allegations. 2. The submission on behalf of the respondent is that: "The respondent does not dispute occasional treatment of family members during the period mid-August 2010 to March 2012. However the evidence of Dr Orman was to effect that this had been a "grey area" and there wasn't certainty as to when and how widely disseminated whether the recommendations of the Medical Board of Australia and the Medical Council of NSW. It is important to know that the treatment of the family members was not prohibited but, rather, was discouraged and that it was understood that simple ailments or necessary referrals remain appropriate. It was submitted that the evidence established that the respondent has not treated family members since March 2012." 1. However, the evidence shows that on 11 May 2012 the respondent wrote prescriptions for his son. In May 2012 there were two occasions where he recorded consultations with his wife and another occasion in June 2012. He prescribed medications on each of those occasions. And there were recorded consultations with his daughter in April, July and August 2012. 2. The Tribunal has already found that the conduct of the respondent under Ground 4 was not unsatisfactory conduct and it cannot therefore be treated as such for purposes of the finding of professional misconduct. 3. However, his conduct of paying little regard to the sound advice of the Medical Council is consistent with his conduct of not complying with the legal requirements for medical records and not persuading the tribunal that he will do so in the future, his failure in the past to keep his CPR training up to date, his repeated breaches of practice condition 1 on his registration, his failure to adopt the advice he has received from Dr Fashka and others to cease practising as a sole practitioner and join a group practice, his failure to adopt the advice he has been given by members of the profession to join the Royal Australian College of General Practitioners and attend its local educational events, and his persistence at practising as a sole practitioner, despite the difficulties encountered, for the whole of the last 10 years since he left the Prince of Wales Hospital. These matters indicate serious attitudinal problems. The Respondent's Health 1. The respondent, because of depression and anxiety, found it necessary to cease practice in 2009/2010. He consulted a psychiatrist, Dr Lal. In a report of 10 July 2009 to the respondent's general practitioner, Dr Lal said he saw the Respondent, who reported he had been severely depressed for 6 months and the depression was worsening. He said he had a progressively worsening mood "associated with anhedonia, low energy and motivation, increased sleep, and decreased appetite. He had been able to work part time only until June when he gave up work completely". The respondent said that his only stressor was his work and he made a "terrible mistake in studying medicine when his real interests were mathematics and science". He said he had a wife and 4 children and had separated from his wife because of his depression. Dr Lal said the respondent presented as "very sad looking and dejected." 2. Dr Lal prescribed an antidepressant medication, but when he next saw the respondent a week later, he had not commenced the medication till that day and his presentation had not changed. Dr Lal treated the respondent over several months, but his illness had not improved and he was still not working at all. 3. Dr Westmore, a psychiatrist, saw the respondent on behalf of the Medical Council of NSW on 21 June 2012. He provided a 6 page report. He said that his "provisional diagnosis" was that the respondent suffered "an Adjustment Disorder with depressed mood in 2009" and "at present, while he demonstrates some symptoms of anxiety, he is not clinically depressed and that illness has fully resolved." Dr Westmore concluded: "At this time he is not suffering from a psychiatric condition and he does not suffer from an impairment within the meaning of the Act." 4. Dr Fashka in his Supervision reports expressed concerns about the Respondent's mental health from May 2013 when he reported that the Respondent needed to improve on his attitude to counselling and his approach to psychiatric problems. He also said that the Respondent "denies any problems" and there had been a "decline in his enthusiasm to go through RACGP training " which Dr Fashka for some months had encouraged him to undertake and the Respondent had said he would do. The Respondent also did not seek counselling by a psychologist even though Dr Fashka had recommended he do so. 5. In his report for July 2013 Dr Fashka wrote: Dr Ghannoum is going through hard time at the moment as he is to answer for the complaint lodged (sic) by the Medical Council of NSW to the HCCC…. About the issues. He is stressing about it. He didn't speak to his defence organisation yet or a lawyer. We are trying to help him write a response. 1. He also in that report said that the respondent had been advised to see a psychologist. In his report for August 2013 Dr Fashka noted "I have some concern about Dr Ghannoum's Depression and Anxiety because of the HCCC complaint. We did some informal counselling and support. He is to see his psychiatrist, Dt Lal." 2. In his report for September 2013 Dr Fashka reported that the Respondent was "very stressed" and "felt unwell " and "took a couple of weeks off." He wrote, "I have concerns regarding Dr Ghannoum's general health especially his depression as he feels very stressed about the whole HCCC proceeding. He feels anxious and depressed. He had 2 weeks off to deal with these issues." And also, "Dr Ghannoum saw his doctor Dr Sanki, who referred him to a psychiatrist." 3. In the October report Dr Fashka noted "Depression: seeing psychologist. Stable now." In the November report he said, "Dr Ghannoum sounds happier and enjoying his work" and in the reports for December 2013 to July 2014 Dr Fashka expressed no concerns about the Respondent's health. 4. But in his report for August 2014 Dr Fashka stated: "I have concerns about Dr Ghannoum's psychological well being as a result of HCCC proceedings and Avant reassessing their policy. He is stressed, upset and exhibiting symptoms of depression." The Respondent did not practice for most of September 2014. This was on the advice of Dr Fashka because the Respondent's professional indemnity insurer was reviewing his cover by doing a risk assessment of him. Dr Fashka reported: "I am concerned about Dr Ghannoum's mental well-being as he is going through difficult times. He is not practising until he has indemnity insurance. He is going through financial difficulties because he is not having any income. I have advised Dr Ghannoum to see his GP Dr Sanki and to see his psychologist Dr Lal." 5. In his evidence at the Section 150 proceedings on 12 July 2012 at page 59 of the transcript, the Respondent did not know that "CME" meant " Continuing Medical Education". At Page14 of that transcript when asked, "Have you ever thought of being vocationally registered by joining the training programme of the college, or the exams of the college? He replied "Yes. Yes I will." But at completion of this hearing more than 3 years later, he had done neither. 6. In his report of November 2014 Dr Fashka reported: " Dr Ghannoum moved to a new practice in Bankstown. He is working as a solo GP. I have concerns about professional isolation. This was expressed to him and he was advised to join a group practice." He also reported, "I advised Dr Ghannoum to do continuous education and to attend educational meeting, alternatively to do educational cases (sic) on line. Websites were provided." 7. Dr Fashka expressed no concerns in his report for January 2015 and resigned as supervisor in February. 8. Dr Ilchef, a psychiatrist, saw the Respondent for the Health Program Manager of the Medical Council on 19 December 2014. He formed the opinion that "on balance it seems likely that he has ongoing or recurrent symptoms of a type that have affected his ability to practice medicine in the past. ……..He is under considerable distress following his divorce and professional disciplinary issues, and facing an HCCC hearing in March , and should really have some regular psychological support during this time. Although he does not seem to meet the criteria for a major depressive disorder currently, in my view Dr Ghannoum has evidence of impairment within the meaning of the Health Practitioner Regulation National Law (NSW)." Dr Ilchef recommended: 1. Early review by a consultant psychiatrist with formulation of a comprehensive treatment plan; 2. A review of the effectiveness of his current medication Venlaflaxine, with active consideration of a change of medication; 3. "Consideration of referral for psychotherapy by a psychiatrist or psychologist, or at least a regular supportive review by a consultant psychiatrist, given the discrepancies between his self reported symptoms and those described by his supervisor. His suggests either active evasion by Dr Ghannoum or lack of insight into the severity of his symptoms. In either case, development of further insight and self-reflective capacity may be beneficial"; and 4. A further medical assessment in 6 months to monitor progress. 1. Dr Ilchef saw the respondent again on 9 June 2015. The respondent told him he had seen a consultant psychiatrist, Dr Philips, twice since he saw Dr Ilchef in December and Dr Philips plans to review him every 6 months. He had also had 2 sessions with a psychologist and had no plan for a further consultation, but said, "I can make an appointment." 2. The Respondent told Dr Ilchef that he has obtained legal representation for the HCCC proceedings, He has a new supervisor, Dr Aloe, who is a friend and colleague of many years standing, his mood was much better, he was sleeping well, socially active, playing soccer, tennis and table tennis, and attending parties in his community and concerts by Arabic singers. He said he had stopped gambling. 3. He also said he was paying $2,000 per month in child support but his former wife was making contact with the children difficult at times and he was pursuing legal avenues to find "a peaceful way" to see them regularly. 4. Dr Ilchef also reported: Dr Ghannoum does not appear to be depressed currently. He denies symptoms and I have no evidence to the contrary. However there is documented evidence of severe depressive disorder in 2009 and 2010 with recurrent though unacknowledged symptoms in 2013 and 2014 that concerned his then supervisor, and of a severe gambling problem between approximately 2001 and 2010. He has, it appears, actively misled Council appointed psychiatrists at times, with both Dr Westmore and myself being unaware of the severity of his gambling problem In 2009 until Dr Lal's correspondence was received. He described his marriage in positive terms to Dr Westmore in 2012, when it appeared he had already separated from his wife at that time. He told me in December 2014 that he had weekly contact with his children when in fact the contact is much less frequent. It also seems to be the bare minimum of mental health contact (2 sessions with a psychiatrist and 2 sessions with a psychologist) since my initial assessment, and no active intervention. He does not plan to see the psychologist again and will be reviewed by his psychiatrist in 6 months time. He remains professionally isolated. Despite undertakings to the Council to work towards entering a group practice, engage in group learning or become involved in his local GP network, he has done none of these. There is a high likelihood of a depressive relapse in a professionally isolated male general practitioner who has functionally impairing symptoms, it would appear, for most of the past 15 years, and appears to have independently sought help in managing these. 1. He said that that the arrangements in place to protect the respondent and his patients from future harm appeared inadequate, and that therefore "he remains impaired within the meaning of the Act". He therefore recommended: * Early review by Dr Philips, with the formulation and communication of a comprehensive treatment plan and relapse prevention plan; * Regular contact with a clinical psychologist or other experienced mental health professional, at a frequency at least monthly; and * Regular independent psychiatric review at a frequency determined by the Council. 1. Dr Ilchef was cross examined on 21 July 2015. He said that when he saw the respondent again in June 2015, he was surprised that the respondent was still taking the same medication. He was seeing his 5 children much less frequently than he had been in December 2014. The respondent didn't tell Dr Ilchef any symptoms. He denied symptoms of depression. Although he was polite and co-operative, his answers were brief and he did not volunteer information. He was not as forthcoming as previously. He was no more than "politely co-operative". He didn't elaborate, even when given the opportunity, and at times he was evasive and gave answers that were vague and discouraging of questions. 2. Dr Ilchef had read Dr Philips' report of 17 June 2015, which related to the first consultation only, which occurred on that date. It is noted that this was the first time since 2009 that the respondent had consulted a psychiatrist, other than Dr Westmore, who had been instructed by the Medical Council. But The respondent had not attended Dr Philips at his own instigation for care or treatment. The attendance was arranged by the respondent's solicitors to obtain a report for evidence in these proceedings. 3. Dr Ilchef's view was that the proposals of Dr Philips for treatment were not adequate. There was no proposal for regular review and the respondent was unlikely to consult someone voluntarily for review or follow up. 4. Dr Ilchef also noted the inadequate and inaccurate history in Dr Philips' report and specifically the non disclosure of the gambling problem, Indeed, the body of the report is about only half a page. It includes no serious attempt at including any history and does not suggest any real recognition of the background or medical history of the patient. It concludes with an opinion (without any serious attempt to support or justify it): It is my opinion that there is no evidence to suggest that Dr Ghannoun is not fit to practice as a general practitioner provided that he continues with the medication, psychotherapy and supervision requirements imposed by the registration authorities. 1. The Tribunal has therefore decided not to rely on the report of Dr Philip[s. 2. Dr Ilchef was cross examined at length by counsel for the respondent. That reinforced his evidence in his reports. He had read the supervisor's reports to the Council in which Dr Fashka the supervisor. He said it is unlikely that the Respondent will voluntarily seek professional treatment in the future for depression or anxiety as he has failed to do so in the past. He expressed concern that the Respondent has given inaccurate and incomplete histories to psychiatrists. He said that being in a group practice would assist the Respondent and so would participating in group activities by involving himself in his local G.P. group. He was aware that the Respondent reads medical journals rather than attending continuing medical education sessions. Dr Ilchef 's opinion is that it would be better for the Respondent to attend such sessions and Group learning would additionally provide interactions with other doctors and group learning would also be preferable for him in respect of his risk of depression. 3. In his report of 10 July 2009, Dr Lal, the psychiatrist, said that the Respondent told him he had "a 6 month history of severe depressive episode". But the respondent did not disclose any gambling problem, nor problems in his marriage. But in the several subsequent months that he saw Dr Lal, the respondent revealed a serious gambling problem. Dr Lal said in his report of 20 March 2013 to the HCCC: Dr Ghannoum's gambling escalated rapidly over a brief period of time to the extent that he even rented a room at star casino and was gambling most of the day. His relationship with his estranged wife and his children deteriorated during this time. Dr Ghannopum refused to consider any kind of counselling for his gambling problem. His mood remained very depressed although there were no thoughts of physical harm to himself or others. Dr Ghannoum also refused to consider admission to hospital. As he was suffering from a severe disturbance of mood and he was placing himself at financial risk, he was in theory "schedulable" under the Mental Health Act. However, Dr Ghannoum, rightly pointed out that he had little money to lose. I formed the opinion that an involuntary admission would further damage Dr Ghannoum's by then fragile sense of self. My recollection is that Dr Ghannoum stopped attending for follow-up, although the circumstances surrounding the end of treatment are not clear in my memory". 1. Dr Ilchef concluded that the Respondent in the past has denied depressive symptoms, and "is not good at recognising, and seeking help for, depressive symptoms". He said if a persons has a major depressive episode gambling may be a symptom of the depression. He said the Respondent in 2009 had spoken of "losing himself" in gambling, which other patients with serious depression have described. He said that Gambling is about "bidirectional causality" in that it can arise from depression and then feed the depression. 2. In answer to questions from a member of the panel, Dr Ilchef said that the difficulties the respondent is having with his former wife about having reasonable contact with his children have the potential to be a stressor and contribute to depression. 3. Dr Ilchef's opinion that the Respondent's need for psychiatric review does not require a frequency of every 3 months. He said that depression is a "recurrent illness" but the Respondent finds it hard to recognise the symptoms in himself. He is also is isolated as a solo practitioner and that itself was a stressor for him. It would also be better if he had a psychiatrist in a clinical situation with almost full confidentiality. 4. It was put to Dr Ilchef that the Respondent would not be isolated if his supervision continued. Dr Ilchef responded that even with a supervisor who was raising with the respondent concerns about his mental health and recommending, psychiatric and psychological help, the Respondent still did not seek help. 5. Counsel for the respondent in written submissions dated 4 August 2015 stated that the respondent "would consent to an order requiring psychiatric review by an independent psychiatrist with such frequency and for such a period as the independent psychiatrist might consider appropriate". 6. The Tribunal has concluded that the protection of the public requires conditions on the Respondent's registration that he "remain in active follow up with his GP, psychologist and psychiatrist and take their advice in relation to his treatment" (as recommend by the Section 150 decision in 2012) and for the respondent to attend for psychiatric review with a Council Appointed psychiatrist at least once every 4 months. Conclusions 1. In his unsworn statement of 10 February 2015 the respondent said "I am planning to join a group practice whenever the opportunity is available." But there was no evidence at the hearing of him negotiating with any group practice and as late as the submissions of his counsel filed on 4 August 2015 there was no news of such. Similarly he has not undertaken any Continuing Medical Education course, seminar or conference despite recommendations of his supervisor and Dr Ilchef and statements to the Section 150 hearing and to his supervisor that he would. 2. The purpose of any decision of the Tribunal must be protection of the public rather than punishment of the Respondent. But this includes protecting the public from similar incompetence or misconduct by other practitioners, reinforcing the standards of the profession and upholding public confidence in the standards of the profession. (See Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA (Basten & Emmett JJA agreeing). Restrictions, conditions of practice, supervision, and other outcomes required to protect the public may well be perceived by the respondent as punitive. 3. The Tribunal does not consider that cancellation of the respondent's registration is appropriate now. But the Tribunal is fearful that if the respondent does not make some very important changes to his attitudes and his practices, there will be further disciplinary proceedings and his registration will be cancelled. The decision of the tribunal must be directed at protection of the public in the short term and also for the longer term by changing some of the Respondent's attitudes, habits and behaviour. 4. There are extensive powers given to the Tribunal in the National Law where the subject matter of a complaint against a practitioner is proved (ss149, 149A, 149B, and 149C). 5. The Tribunal has decided that for the protection of the public orders per (1) to (4) below should be made and is considering whether for the protection of the public there should be orders that have the effect per (5) to (10) inclusive: 1. A finding that the respondent is guilty of professional misconduct; 2. A reprimand; 3. Conditions 1 & 6 (regarding Schedule 4D and Schedule 8) drugs and condition 2 (Oxygen and Adrenalin) imposed on the Respondent's Registration in August 2012 to continue to apply. 4. Condition 4 (Supervision) imposed on the Respondent's Registration in August 2012 to continue to apply until 1 January 2017; 5. A recommendation by the Tribunal to the Medical Council of NSW that for review of medical records the supervisor use only medical records chosen randomly by the supervisor; 6. The Respondent's Registration be subject to the following further conditions: 1. He must not undertake solo practice after 29 February 2016; 2. He must attend once every 4 months for assessment and report to the Medical Council by a psychiatrist nominated by the Council and pay the reasonable fees of the psychiatrist; 3. He must remain in active follow-up with his general practitioner, his psychologist and psychiatrist and comply with their advice in regard to his treatment; 1. A condition of his Registration that the respondent join a Division of the Royal Australian College of General Practitioners within 1 month and attend at least one continuing medical education course each month while registered to practice; 2. A condition of his Registration that the Respondent by 31 December 2016 do all acts necessary to become a Fellow of the Royal Australian College of General Practitioners and comply with the requirements to continue that Fellowship while ever practising as a general practitioner; 3. An order that the conditions referred to in (3), (4) (6) and (7) be critical compliance conditions, contravention of which will result in the Respondent's registration being cancelled; and 4. An order that the Respondent pay the Applicant's costs. 1. The parties should have an opportunity to provide any further submissions regarding the above proposals. 2. For the protection of the privacy of any patient there should be an order prohibiting publication or broadcast of the name or other identifying information of any patient. Orders 1. The order of the tribunal is: 1. The Parties must each provide any further submissions on the proposals in (5) to (10) of para 172 of these reasons by 22 December 2015; and 2. Publication or broadcast of the name or other identifying information of any patient is prohibited. ********** 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 22 December 2015 - Formatting error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2015