Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Tan [2016] NSWCATOD 77 Hearing dates: 25 May 2016 Date of orders: 17 June 2016 Decision date: 17 June 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Dr C Newberry, Professional Member Dr G Abouyanni, Professional Member A Gray, General Member Decision: 1. The respondent is found guilty of professional misconduct. 2. The respondent is disqualified from being registered as a medical practitioner for a period of three years from this date. 3. The National Board with which the respondent was registered is required to record the fact that we would have cancelled the registration of the respondent in the National Register kept by it. 4. The respondent is prohibited from directly providing on a private or public basis mental health services unless and until he is re-registered as a medical practitioner. 5. The respondent is to pay the costs of the complainant of these proceedings assessed in default of agreement. Catchwords: MEDICAL PRACTITIONER - over-prescription of drugs of addiction without authority - Held professional misconduct - registration cancelled Legislation Cited: Health Care Complaints Act, 1993, s39 Health Practitioner Regulation National Law (NSW), ss139B, 139E, 139G, 149C, Schedule 5D cl 12 Poisons and Therapeutic Goods Act, 1966 Cases Cited: Health Care Complaints Commission v Do [2014) NSWCA 307 Health Care Complaints Commission v Bao-Quy Nguyen-Phuoc (No 2) [2015] NSWCATOD 94 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Ghee Hong Michael Tan (Respondent) Representation: Counsel: A Petrie (Complainant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Complainant in person) TressCox Lawyers (Respondent) File Number(s): 1520265 Publication restriction: Non-publication order of any material which would, or might tend to, identify patients A and B pursuant to Schedule 5D cl 12 of the Health Practitioner Regulation National Law REASONS FOR DECISION 1. These proceedings are constituted by a Notice of Complaint. The complainant, the Health Care Complaints Commission, complains that the respondent, Dr Ghee Hong Michael Tan has been guilty of unsatisfactory professional conduct and professional misconduct within the provisions of section 139B and 139E respectively of the Health Practitioner Regulation National Law ("the National Law"). The Notice of Complaint is in the following form: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Ghee Hong Michael Tan of, 1 Mona Vale Road MONA VALE NSW 2103 ("the practitioner") being a medical practitioner formerly registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT ONE The practitioner obtained his medical degree in 1981 and commenced working as a private general practitioner in 1986. In 2007 he commenced working at Richmond Road Family Practice and in 2010 commenced at Kidare Road Medical Practice (later known as The Practice). PARTICULARS OF COMPLAINT ONE Patient A 1. The practitioner prescribed Oxycontin (Oxycodone) and Oxynorm (Oxycodone), a schedule 8 opioid 'drug of addiction' within the meaning of section 4 of the PTG Act to Patient A, a person he knew to be drug dependent, as set out in Schedule A without obtaining an authority under section 29 of the PTG Act, contrary to section 28(3) of the PTG Act. 2. Prior to commencing prescribing Oxycontin and Oxynorm in February 2011 to Patient A the practitioner failed to conduct an appropriate assessment of Patient A. 3. The practitioner failed to exercise responsible medical judgment as to whether it was appropriate to commence prescribing and continue to prescribe the Oxycontin and Oxynorm in Schedule A to Patient A. 4. The practitioner prescribed Oxycontin and Oxynorm to Patient A as set out in Schedule A in a quantity or for a purpose not in accordance with recognised therapeutic standards as to what is medically appropriate, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTG Regulation). 5. Prior to commencing prescribing Valium (Diazepam) to Patient A in March 2011 as set out in Schedule A the practitioner failed to conduct an appropriate assessment of Patient A. 6. The practitioner prescribed Valium, a schedule 4D 'prescribed restricted substance' within the meaning of clause 61 and Appendix D of the PTG regulation, to Patient A as set out in Schedule A in a quantity or for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 39 of the PTG regulation. 7. The practitioner prescribed Oxycodone and Diazepam to Patient A as set out in Schedule A without exercising responsible medical judgment as to whether it was appropriate to prescribe the medications together. 8. From February 2011 to August 2014, the practitioner failed to adequately manage Patient A's care and treatment in circumstances where he: a. prescribed the Oxycodone and Diazepam in Schedule A to Patient A; b. did not perform a focused clinical examination or determine a suitable plan of treatment; c. did not make and enforce a contract with Patient A to ensure that Patient A reduced his elevated prescription drugs intake and regularly attended a drug and alcohol specialist or addictions specialist; and/or d. delayed referring Patient A to a drug and alcohol specialist until 22 November 2012 at which stage his Oxycodone consumption was already 1600mg daily. Patient B 9. The practitioner prescribed Physeptone (methadone), a schedule 8 type B 'drug of addiction' within the meaning of section 4 of the PTG Act to Patient B after 1 December 2012 for a period exceeding 2 months as set out in Schedule B, without obtaining an authority under s29 of the PTG Act, contrary to section 28(2) of the PTG Act. 10. Prior to commencing prescribing Physeptone and Valium to Patient B in August 2008 as set out in Schedule B, the practitioner failed to conduct an appropriate assessment and examination of Patient B. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (b) of the National Law in that the practitioner has: i. contravened (whether by act or omission): a. Clause 5(1) and schedule 2 of the Medical Practice Regulation 2003 (repealed); b. Clause 4(1) and schedule 1 of the Medical Practice Regulation 2008 (repealed); and/or c. Part 4 clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to keep proper medical records of Patient A in that he failed to record information known to him, relevant to his diagnosis and/or treatment including: a. Patient A's medical history and then current health problems; b. the results of examinations and assessments of Patient A; c. particulars of clinical opinions reached by the practitioner; d. a plan of treatment for Patient A; e. a record of the information or advice given to Patient A in relation to the medical treatments he proposed to give or recommend; f. a record of advice or information given to him by Patient A's specialists; and/or g. a level of detail appropriate to Patient A's case. 2. The practitioner failed to keep proper medical records of Patient B in that he failed to record information known to him, relevant to his diagnosis and/or treatment including: a. Patient B's medical history and then current health problems; b. the results of examinations and assessments of Patient B; c. particulars of clinical opinions reached by the practitioner; d. a record of the information or advice given to Patient B in relation to the medical treatments he proposed to give or recommend; and/or e. a level of detail appropriate to Patient B's case. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT THREE As for Complaint One. PARTICULARS OF COMPLAINT THREE Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. Admissions and interlocutory application 1. On 31 March 2016, the respondent filed a Reply to Application for Disciplinary Findings in which he admitted that he was guilty of all of the matters about which complaint was made against him contained within each of the Complaints One, Two and Three constituted by each of the particulars set out therein. Furthermore, the respondent admitted that his conduct constituted unsatisfactory professional conduct as alleged and professional misconduct, as alleged. Specifically, the respondent also accepted that his records contravened "the standards required by the relevant regulations." Thus, all of the particulars of all the complaints having been conceded, the principal concern extends to the nature of any protective orders that should appropriately be made. We formally find that the respondent is guilty of the Complaints as particularised. 2. When the matter came on for hearing, the respondent made an application that, because he had not renewed his registration as a medical practitioner on 30 September 2015 and had no intention at that time of returning to the practice of medicine, we should not proceed to conduct an enquiry into the matter pursuant to the provisions of section 39(1)(e) of the Health Care Complaints Act, 1993. 3. The application was opposed by the complainant. The presiding member determined to reject the application and oral reasons were given during the course of the hearing. 4. For reasons which will become apparent later in these reasons for decision, the mere recitation of the particulars contained in the several complaints does not provide a complete and accurate account of the serious conduct of the respondent, as conceded by him. For this reason, it will be necessary to make some reference to the evidentiary material filed in the proceedings. The evidentiary matrix 1. A great deal of documentary material was filed by the complainant. It covered, inter alia, documentation provided by the Pharmaceutical Services Unit concerning enquiries made by that unit following notification to it about the prescribing conduct of the respondent, background material and a transcript relating to an enquiry conducted by delegates of the Medical Council of New South Wales, an expert report of Dr Andrew Patterson retained by the complainant, information made available by two pharmacies who had dispensed medication following the issue of prescriptions by the respondent, psychiatric reports, and the clinical records of the respondent with respect to each of the two patients concerned. 2. In addition, the respondent gave oral evidence and tendered documentation on his behalf. 3. We shall refer to such portions of this evidentiary material as is relevant for our consideration of the proceedings, albeit that we shall refer to the material in abbreviated form, consequent upon the admissions made by the respondent. The respondent's background 1. The respondent was born on 26 July 1956. He graduated in medicine in 1981. After working in a number of hospitals as an intern and resident, the respondent commenced working as a general practitioner in 1986 and continued working in a number of surgeries in suburban Sydney until he retired from practice and surrendered his registration on 30 September 2015. 2. In 1998, the respondent was the subject of a Professional Standards Committee enquiry and was found guilty of unsatisfactory professional conduct in connection with his interaction with a patient. Conditions were placed on his registration. All of these conditions had been removed by early 2000. Patient A 1. The following circumstances which pertain to this Patient are taken from a report of an officer of the Pharmaceutical Services Unit as part of an investigation conducted into the prescription of OxyContin to this Patient by the respondent. This investigation revealed that during a period of 776 days between 1 April 2012 and 16 May 2014 scripts issued by the respondent to this Patient were filled at two pharmacies for 11,311 OxyContin 80mg tablets, 673 OxyContin 40mg tablets, 77 OxyContin20 mg tablets and 1,920 OxyNorm 20mg tablets. A total of 951,740mg of this medication was prescribed during this period. If one took a daily average over this period, this would result in consumption of 1,226mg per day. 2. During the same period, the respondent had prescribed for this Patient a total of 5,985 tablets of Diazepam 5mg, totalling 29,925mg which averaged out at 38mg per day. 3. This Patient was then currently enrolled in the NSW Opioid Treatment Program under the care of Dr Robert Graham of the Blacktown Methadone Unit. The respondent was aware of this. The respondent twice applied for an authority under the Poisons and Therapeutic Goods Act to prescribe 280mg of Oxycodone daily for this patient, but his request was declined. Nevertheless, the respondent continued to prescribe OxyContin to this Patient without lawful authority. He said that he did not give the consequences of doing so much thought. 4. Whilst prescribing OxyContin for this Patient, the respondent had received advice from Dr Graham on a number of occasions warning him of the excessive amount of Oxycodone consumption by this Patient and suggesting that it be reduced. Nevertheless, the respondent continued to prescribe OxyContin and increased the dose. 5. The respondent conceded that this Patient had never threatened him with physical violence or offered him any form of financial incentive to continue to prescribe OxyContin but he told the investigator that he felt a degree of "psychological pressure" when attempting to reduce his dosage. He conceded that he had a problem in controlling this Patient's desires. At all times the respondent was aware that the excessive use of this medication would place the patient at significant risk of self harm. He further acknowledged that in prescribing "extremely large doses of Oxycodone in combination with a high dosage of Diazepam", that he may have placed the Patient's life in danger. 6. The respondent said that he was unaware whether this Patient might be selling some or all of his prescribed medication for financial gain. He had given this matter some thought but had taken no action on it. 7. The respondent described the Patient's complaints of pain to the investigator as consisting "of osteoarthritic pain of the knee, hip and back regions, all of which were described to be of relatively moderate severity, scoring between 2 and 5 out of a maximum 10 when asked to describe their intensity." 8. The respondent had continued to prescribe a high dose of Diazepam to this Patient "for underlying anxiety, pain and bladder spasm…." 9. In the course of responding to questions from the Tribunal, the respondent acknowledged that the maximum dose of Oxycodone for pain relief was of the order of 80mg twice a day and that for palliative relief could have been 2 to 3 times that quantity. We proceed on the basis that the prescription of Oxycodone to this Patient at the levels fixed by the respondent over this period of time was such that if the Patient had taken this medication he would have been at high risk of dying. The alternative scenario is that this Patient was selling this medication to others for reward. These alarming circumstances were exacerbated by the concurrent prescription of Diazepam, also at an excessively high rate, and, on the expert advice of Dr Patterson was contraindicated. The respondent said in answer to a question from the Tribunal that "I now realise it was impossible to take this dose and remain alive." Patient B 1. A table of prescriptions issued by the respondent to this patient indicates that from 14 December 2012, scripts for Methadone were issued regularly until 7 July 2014. As conceded by the respondent, the scripts had been issued without the respondent having obtained an authority under the Poisons and Therapeutic Goods Act. 2. In setting out these brief details concerning the prescriptions issued by the respondent to these two patients, we have endeavoured to bring a greater understanding of the impact of the particulars of the complaints made by the complainant and conceded by the respondent on these patients. Psychiatric evidence 1. The Medical Council had recommended that the respondent seek psychiatric treatment. He was referred to Dr Paul Friend who assessed him on 9 and 28 October 2014. On this later date, Dr Friend provided a report to the referring general practitioner, a copy of which is contained within the evidentiary material provided by the complainant. After setting out in summary terms the respondent's history and making brief reference to the matters the subject of these proceedings, Dr Friend made the following observations under the subheading "diagnosis and recommendations.": Dr Tan has a strong commitment to practising medicine in a compassionate way and providing continuity of care as distinct from continuity of service. He has found, at least from time to time that there has been a conflict with the values of the various medical centres where he has worked where there are various pressures to provide continuity of service as this generates more income for the Medical Centre. Dr Tan does not have evidence of major or serious psychiatric condition. He is not psychotic, does not have Bipolar Disorder and if he has had depressive and anxiety symptoms these would be in the context of an adjustment disorder. He does not require psychiatric medication. 1. Dr Friend referred to the fact that the respondent's practice was being supervised and that he was being mentored. He recommended that he attended monthly for cognitive psychotherapy "exploring his emotional state." 2. Dr Friend also provided a report of 2 May 2015 consequent on a consultation on 30 April 2015. In that report, Dr Friend said that the respondent had attended all scheduled appointments with him. He thought that the respondent "has been honest about all matters, has engaged with treatment and is prepared to continue for as long as is deemed appropriate." 3. Dr Friend thought that the respondent had greater insight into his vulnerabilities: ...particularly the need to not become overly empathic or overly involved with patients, to seek a second opinion, discuss cases with a senior colleague or refer onto another colleague if he feels that matters are becoming very complex. He accepts that he should be vigilant about patients becoming or being addicted when prescribing potentially addictive medications and that he needs to apply to the appropriate authorities when doing so. 1. Significantly, Dr Friend added that "..it is a difficult question to say whether the vulnerabilities have been successfully addressed." He thought that if the then existing practice conditions were removed that the respondent was "very unlikely to again infringe in the same manner" but that it was premature, at that stage, to say that his vulnerabilities "have resolved to a sufficient level." 2. In summarising the circumstances of the respondent for the purpose of that report, we perceive Dr Friend to have been of the opinion that the respondent acknowledged his errors of judgement and his need for greater vigilance in dealing with patients requesting opiates or other medication that could lead to dependency, and that the respondent's vulnerabilities consisted of a tendency to commission an error of judgement and to lack a of vigilance in his overly empathic attitude towards these patients. We repeat that although Dr Friend thought that the respondent had much greater insight into his vulnerabilities, they had not completely resolved. 3. Without being unduly critical of Dr Friend, we do not perceive that this report contains any explanation about why the respondent would have engaged in the conduct which he did in the treatment of these patients, and especially Patient A. We are unable to discern from the opinions expressed by Dr Friend, which we have summarised above, why the respondent would have prescribed the dosage at the extraordinary levels that he did to these patients over this period of time in breach of the lawful requirement to possess the appropriate authority to do so. Generosity of spirit does not, in our opinion, explain those aspects of the respondent's personality or character which would permit him to engage in the conduct which he did. 4. The Medical Council referred the respondent to Dr Bruce Westmore, a forensic psychiatrist to provide an opinion, and not for the purpose of treatment. An initial report of Dr Westmore dated 5 January 2015 narrated a history of the respondent's involvement with the Council firstly in connection with the earlier incident in 1995, and subsequently concerning his treatment of the patients the subject of these proceedings. After taking an autobiographical history, conducting an examination of the respondent's "mental state" and perusing documentation forwarded to him by the Medical Council, Dr Westmore proffered an "opinion and psychiatric diagnostic issues." 5. Dr Westmore said that the respondent was not suffering from any specific or particular psychiatric illness or condition. He thought that he might have had some anxiety and despondency of mood caused by the investigations being conducted by the Council. He summarised the respondent's belief as to the cause of his problems in that "he had become over-empathic and over-compassionate towards people generally, but also with patients who have problems of a similar type." The respondent had acknowledged to Dr Westmore that he had prescribed medication "far in excess of the (the patient's) clinical needs" and that he had been "over-empathic with the patient". Furthermore, the respondent told Dr Westmore that he was not aware of the risks dealing with some patients because he was not a member of a structured team and, presumably, was isolated "when dealing with difficult and what was probably potentially demanding patients." 6. Of interest, Dr Westmore said that the respondent was suffering from an impairment as defined in the National Law, although there was no specific psychiatric diagnosis available and there was no such condition arising from "his personality structure". He thought that the respondent was suffering from "various personality "vulnerabilities"". This had caused him to behave inappropriately either by breaching professional boundaries and ethics or by prescribing medication inappropriately and in inappropriate doses. 7. Dr Westmore recommended that the respondent continue to undergo psychiatric treatment, and that he be allowed to continue practising albeit under strict conditions. 8. A further report from Dr Westmore dated 4 August 2015 was tendered by the respondent. At this time the respondent, had indicated his intention to retire from clinical practice on 30 September 2015 and to carry out some advocacy work in a non-clinical capacity. Apart from noting that the respondent's "affect was a little flat, as was his mood" Dr Westmore was unable to identify any "psychotic symptoms" and described the respondent as being "alert and attentive." 9. Of the psychiatric evidence which is available to us, there is no satisfactory explanation as to what might have motivated the respondent in embarking upon the course of treatment of these patients, and especially Patient A. The only explanation proffered is that the respondent may have been overly "empathic". Whilst we do not wish to appear to be critical of the lack of insight into the respondent's behaviour conveyed by the psychiatric opinions, we are left in the dark as to why this respondent would have embarked upon the course of conduct that he did, involving, as we have said, the prescription of potentially fatal doses of opioids with an inappropriate combination of other medication, in circumstances where the respondent knew he had no authority at law to do so, and, in addition, failing to consider that drugs of addiction may have been diverted to others. Decision of delegates of the Medical Council of New South Wales dated 14 November 2014 1. We have been provided with a copy of this decision. The respondent gave evidence in these proceedings, and a legal representative was present with him. The delegates noted that when the respondent was asked to comment on the extent of Oxycodone and Diazepam which he had prescribed to Patient A. He replied by referring to the dosage as "excessive", "ridiculous", "I should never have done it" and it was "a foolish thing to do." He also conceded that even though he thought he might have been helping the Patient, he realised that he had perpetuated his habit and potentially enhanced his ability to divert the drugs to third parties. The delegates noted that the respondent was aware that this Patient was drug seeking and doctor shopping. The effect of the surrender of registration 1. Although the respondent has not renewed his registration, he remains amenable to findings of misconduct and the making of protective orders, by reason of s139G of the National Law which provides: 139G Part applicable to persons formerly registered under this Law (1) This section applies if a person was, but is no longer, registered in a health profession under this Law. (2) A notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession. (3) For the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. 1. Accordingly, we shall deal with the respondent as though he remains registered. Professional misconduct and protective orders 1. The respondent conceded, appropriately, that his conduct overall constituted professional misconduct. Professional misconduct is defined in the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. This definition in turn makes reference to the definition of unsatisfactory professional conduct which is defined, in part, as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. For the purpose of considering the application of these provisions to the circumstances of these proceedings, we need to state, in summary form, the nature and extent of the misconduct of the respondent which he has, appropriately, conceded. The respondent has: 1. Inappropriately, and over a long period of time, prescribed a drug of addiction, namely Oxycodone, to Patient A at a dosage which is so far in excess of that which is recommended for pain relief, and even for palliative care, as to be characterised as deserving of contempt, and which was potentially fatal. 2. In addition, prescribed Patient A with Diazepam concurrently, in circumstances which were potentially fatal. 3. Been aware that Patient A was also under the care of a specialist in a Methadone treatment program whilst he was continuing to prescribe excessive levels of Oxycodone. 4. Failed to keep proper medical records as required by law. 5. Failed to perform a focused clinical examination or determine a suitable plan of treatment. 6. Failed to heed advice from a pain specialist advising him to cease prescribing Patient A with high levels of Oxycodone. 7. Been aware of, but did not sufficiently take into account, the fact that he had no authority at law to prescribe the relevant medication to these patients. 8. Given inadequate thought to the possibility that Patient A might have been selling the drugs prescribed to him for reward to others who were or might become drug dependent. 1. It seems to us that in so describing the misconduct of the respondent, which he has candidly admitted, and endeavouring to comprehend the facile explanations which he has tendered, we can only describe his behaviour as contemptible, outrageous and unethical. There can be no doubt that the misconduct of the respondent constitutes unsatisfactory professional conduct. Whether it constitutes professional misconduct is a matter for the exercise of a value judgement which is an evaluative process, undertaken in the context of the legislative matrix against which these proceedings are being conducted. 2. In determining what orders are appropriate we are guided by relevant principles established by appellate court authority. In Health Care Complaints Commission v Do [2014) NSWCA 307 Meagher JA (with whom Basten and Emmett JJA agreed) said at [34]-[37]: 34 The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36 In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37 In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We are conscious that in determining the nature and extent of any protective orders, we must take into account a primary regard for the protection of the health and safety of the public in the practice of medicine by the respondent and whether, in all the circumstances, the misconduct which we have found would render the respondent being characterised as having a character so unbefitting a medical practitioner that his registration should be cancelled. We acknowledge that it is integral to our functions and powers that we also take into account the necessity to uphold appropriate professional standards and to send a message to other medical practitioners that misconduct of this kind will not be tolerated. All of these matters are well established by relevant authorities, and succinctly summarised in the extract from Do as set out above. 2. We have already described the misconduct of the respondent as "contemptible, outrageous and unethical". It offends every sense of the moral and ethical practice of medicine. It beggars belief that the respondent did not understand that he was prescribing a dangerous substance to these patients. Even assuming that he did not fully comprehend just how dangerous the regime which he administered to these patients was, and especially Patient A, common sense dictates that the respondent should have made appropriate enquiries. There is a wealth of information available to medical practitioners who wish to check on the appropriate uses and dosage of medication. This is the least that the public is entitled to expect from a medical practitioner if he or she had some doubt or concern about his or her knowledge in a particular area. We are not convinced on the basis of the evidence of the respondent as given during the course of the proceedings, as given to the Medical Council proceedings and as conveyed to others, that he was ignorant of the potential consequences of his behaviour in the administration of these drugs to these patients. 3. Nor is there any evidence that the respondent lacked awareness of the necessity for him to obtain authorisation for the administration of this medication. Indeed, the evidence is to the contrary and is indicative that the respondent knew, but did not care, that he was in breach of this very important law directed to the regulation of the prescription and distribution of drugs of addiction. This attitude, which involves a flagrant breach of the law and exhibits an intention not to be bound by it is unbecoming any member of society, whether a medical practitioner or not. The practice of medicine is an honourable profession. To conduct oneself in this way brings dishonour to the practitioner and to the profession generally. 4. In the same way, the breach by the respondent of his obligations to keep and maintain proper clinical records, which he has conceded, is indicative of someone who did not care about his responsibilities as a medical practitioner. 5. In our opinion, a person who has behaved in the manner which we have described should not, in the public interest, and having regard to the protection of the public be allowed to continue to practice as a medical practitioner. There is no evidence, including the expression of any opinion by any expert competent to do so, that the respondent would not succumb to the "vulnerabilities" described by Dr Friend again, if he were permitted to continue to practice medicine, albeit with strict practice conditions. However, adopting this approach on its own does not accommodate the other matters which we are required to take into account, and to which we have referred above. The only appropriate protective order in the circumstances, assuming that he was still registered, would be to cancel the registration of the respondent as a medical practitioner, and we shall proceed accordingly. It follows that in so concluding we have found that the respondent is guilty of professional misconduct. 6. Cancellation of registration is the most severe protective order that can be imposed. Hopefully, such an order will also demonstrate to other medical practitioners that the community will not tolerate misconduct of this kind. 7. In circumstances where there is no satisfactory explanation as to why the respondent engaged in professional misconduct, we have no means of fixing any appropriate minimum period of cancellation before the respondent might be eligible to again apply for registration. As we have said, the respondent has engaged in unlawful activity, has demonstrated incompetence in the practice of medicine, and has been careless as to the consequences of his conduct. He would need to demonstrate that he had attended to all of these failings before again applying for registration. He has said in a statement tendered in the proceedings that through his treatment with Dr Friend he has been able "to identify, explore and address the underlying vulnerabilities which lead to my inappropriate prescribing." But, as we have been at pains to point out, there is no underlying satisfactory explanation as to what led to this "inappropriate" prescribing. Furthermore, there is no satisfactory explanation concerning the respondent's unlawful conduct and flagrant breach of the law which we have described. A protestation of understanding does not signify that there is appropriate insight into what occurred and why, and that such measures have been taken as would ensure that misconduct of this kind would not occur again if the respondent were permitted to resume the practice of medicine. We would think that a minimum period of three years would be appropriate in providing the respondent time in which to contemplate the nature and extent of his misconduct and to undertake such rehabilitative measures as may be available to him. We shall proceed accordingly. Other protective orders 1. In evidence, the respondent said that he had no present intentions of seeking to return to practice medicine, but wished to undertake some form of advocacy as a health consumer representative, and to take some overall supervisory role in the administration of pastoral care in his church. 2. The complainant sought an order pursuant to section 149C(5A) of the National Law prohibiting the respondent from providing directly to any person any health service as defined in section 5 of that Act that involved the provision of mental health services. 3. Relevantly, section 149C(5) and (5A) are in the following terms: ….. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note : Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. 1. The rationale for the making of a prohibition order as sought by the complainant was considered by the Tribunal in Health Care Complaints Commission v Bao-Quy Nguyen-Phuoc (No 2) [2015] NSWCATOD 94 at [34]-[35] as follows: 34. We had some initial reservations about whether it was appropriate to make a prohibition order prohibiting the respondent from practising as a naturopath. As we understand it, the practice of naturopathy is entirely unregulated, there are no particular qualifications, and hopefully any treatment administered is not capable of inflicting harm. (We should not be taken to have assumed in any way that naturopathy is beneficial). On this basis, why should the respondent be precluded from endeavouring to earn a living, albeit that he has not said that he wished to pursue any such practice? 35. After some concerned consideration, we have determined to accede to the complainant's request, for the following reasons. If the respondent came into contact with a person and gave advice for reward about any aspect of that person's health or well-being, he would bring to bear on that advice his knowledge as a medical practitioner. Utilising such knowledge could potentially put the respondent in breach of the Act because he would not be registered as a medical practitioner. Furthermore, if such a person was aware that the respondent had formerly practised as a medical practitioner, or possessed an MB BS university degree, that person might well assume that he or she was receiving care at that level. The protection of the public would preclude these circumstances arising in the case of the respondent, based upon the nature and extent of the misconduct which we have found against him. We acknowledge that, in doing so, the respondent will thereby be deprived of an alternative potential source of income. However, this is an unfortunate result of the circumstances which have mandated the making of a prohibition order. 1. In our opinion, the same consideration should apply to the respondent in these proceedings with respect to the direct provision of any mental health services. The respondent, through his counsel, agreed to such an order being made. Costs 1. The complainant sought a costs order in its favour. This is a costs jurisdiction and the normal principle applies that a successful party is entitled to a costs order unless there are compelling circumstances to the contrary. The respondent conceded that it was appropriate to make such an order and we propose to make a costs order accordingly. Orders 1. In consequence of the findings of professional misconduct which we have made, our finding that if the respondent were still registered as a medical practitioner, we would have cancelled his registration and other findings as set out earlier in these reasons for decision, we make the following orders: 1. The respondent is disqualified from being registered as a medical practitioner for a period of three years from this date. 2. The National Board with which the respondent was registered is required to record the fact that we would have cancelled the registration of the respondent in the National Register kept by it. 3. The respondent is prohibited from directly providing on a private or public basis mental health services unless and until he is re-registered as a medical practitioner. 4. The respondent is to pay the costs of the complainant of these proceedings assessed in default of agreement. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2016