Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Azizi [2016] NSWCATOD 94 Hearing dates: 7, 8 and 9 March 2016 Date of orders: 20 July 2016 Decision date: 20 July 2016 Jurisdiction: Occupational Division Before: Mullane ADCJ, Principal Member Dr M Diamond, Professional Member Dr S Gani, Professional Member Dr C Berglund, General Member Decision: (1) The registration of the respondent as a medical practitioner is cancelled pursuant to the provisions of section 149C of the National Law; (2) Pursuant to section 149C(7) of the National Law a period of 3 years is fixed before the respondent may apply for a review; and (3) The respondent must pay the costs of the applicant of or incidental to these proceedings as agreed or as assessed under the legal costs legislation. Catchwords: Medical practitioner professional misconduct, forged prescriptions for drug of addiction, false representations to pharmacists, not using for health purposes, self administering drug of addiction on some days before work, misleading Medical Council and HCCC during investigations. Legislation Cited: Health Practitioner Regulation National Law (NSW) (2009); Poisons and Therapeutic Goods Act 1966; Poisons and Therapeutic Goods Regulation 2008; Drug Misuse and Trafficking Act 1985 (NSW); Cases Cited: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Prakash –v- Health Care Complaints Commission [2006] NSWCA 153; Lee –v- Health Care Complaints Commission [2012] NSWCA 80; NSW Bar Association v Meaks [2006] NSWCA 340; Skinner v Beaumont (1974) 2 NSWLR 106;; Law Society of NSW v Foreman (1994) 34 NSWLR 408; Seville v HCCC [2006] NSWCA 298; Re Dr Parajuli [2010] NSWMT 3]; HCCC v Dr Graeme Harris [2008] NSWMT 6]; HCCC v King [2013] NSWMT 9; HCCC v McHue (NSW Medical Tribunal. 14 December 2007; Ex parte Lenehan (1948) 77 CLR 403; HCCC v Dinnaker [209] NSWMT 8; Ohn v Walton (1995) 36 NSWLR 77 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Nima Azizi (Respondent) Representation: Counsel: R Mathur (Applicant) Solicitors: Health Care Complaints Commission (Applicant) R Kouchoo (Respondent) File Number(s): 1520182 REASONS FOR DECISION Introduction 1. These are disciplinary proceedings under the Health Practitioner Regulation National Law (NSW) ("the National Law") taken by the applicant against the respondent medical practitioner and commenced by an application filed in this Tribunal on 11 September 2015. 2. The complaints alleged by the applicant relate to the prescribing of a drug of addiction by OxyContin tablets, purportedly for patients but in fact for the respondent himself, over a period of about 7 months in 2013, the making of false representations to pharmacists that the scripts were for patients, the use of the drugs on occasions when he was rostered on duty in the Emergency Department of Blacktown Hospital and/or Mt Druitt Hospital, misleading and/or misinforming the Medical Council of NSW of various matters in connection with the investigation of continuing therapy in relation to hypnotherapy for opiate addiction, and alleged impairment detrimentally affecting his capacity to practise the profession of medicine. 3. The applicant seeks that the respondent be removed from the Register of Medical Practitioners and that he not be able to reapply for registration for at least 2 years. 4. The respondent does not deny that he wrote prescriptions for the relevant medication, OxyContin 80mg tablets, on 51 specified occasions where the prescription was not for a patient, and he received on each occasion fifty six 80mg OxyContin tablets. 5. The respondent received a total of 2,856 80mg OxyContin tablets, and it appears from his evidence that he used something less than 450 of the tablets, with a balance of about 2,400 tablets unaccounted for, except for his evidence that on 2 occasions he put some tablets in the garbage bin, and on other occasions he flushed tablets down the toilet. General Background 1. There was a statement of agreed facts filed by the parties at the hearing, and these background findings are largely agreed to. 2. The respondent is 34 years of age. He arrived in Australia in 2008 from Iran. He had graduated as a Doctor of Medicine in April 2006 from Tehran University in Iran. In Tehran he worked at a hospital as an Intern and then as a Senior Resident Medical Officer (SRMO). 3. When he came to Australia, the respondent first registered with the Australian Health Practitioner Regulation Agency ("AHPRA") in July 2009 with Limited Registration. In July 2009 he worked as an SRMO at St George Hospital for 6 months in surgery, then as an SRMO at Blacktown and Mt Druitt Hospitals ("the hospitals") in the Emergency Departments ("ED"). 4. From January 2011 the respondent worked as a registrar (advanced trainee) in the ED until the events in this matter resulted in his resignation from his employment by Western Sydney Local Health District in February 2014. 5. In 2013 the respondent's family resided in Iran, but he had some friends in Australia. As an International Medical Graduate, the respondent was required to work with supervision and only at the 2 hospitals. His supervisor at the hospitals was Dr Raza Ali (Director of ED). 6. In early March 2013 the Respondent commenced writing the subject prescriptions for OxyContin and having them dispensed by pharmacies. 7. The respondent's evidence is that in April 2013 a romantic relationship of two and a half years ended and on 29 June 2013 he failed the clinical AMC examination (to allow him to practise medicine without the requirement that it be in a hospital with supervision) for the third time. 8. In September 2013 he was contacted by the Pharmaceutical Services Unit about 3 of those prescriptions for the same stated patient. He denied he had written them and alleged they were forgeries. That month the Director of the ED conducted a performance assessment meeting with him in relation to his arrival at work for a shift "dishevelled and untidy", a phone call to the hospital by a pharmacist about a prescription presented for dispensing and the fact that a search found the nominated patient had never been treated at the ED. 9. The respondent told the Director that he was very tired because he had been preparing for the clinical AMC exam and would not come to work in that state again. He was also asked about the suspect script and denied any wrong doing in relation to that. He denied writing any inappropriate prescriptions. 10. From a date in October the respondent took leave from his employment to prepare for the clinical AMC examination which he intended to resit on 22 November 2013. 11. In the early hours of 13 November 2013 the respondent called an ambulance as he was unwell and had at one stage lost consciousness. He was taken to Ryde Hospital and admitted. He said he had intentionally taken an overdose of Methadone. He said he had been taking "OxyContin mg 80 IV" from the "black market" for the last 2 months. He said he was taking "IV drugs" and methadone to have the energy to work. He denied any suicidal ideation. 12. He later told a doctor that he had started using "OxyContin 80 mg IV" 2-4 weeks ago "to get energy to do shifts", but decided to switch to methadone to cease using OxyContin. He said he had been using methadone 40 – 50 mg for about 10 – 12 days but the night of 12 November he felt the dose was not enough as he still had withdrawal symptoms, so he doubled it. 13. The hospital records record that he was repeatedly unco-operative. At one stage he removed a cannula. He fell over at about 2.30pm and then refused to be monitored on a continuous basis. He had accepted the plan that he would remain in the hospital until he had a drug and alcohol assessment the following morning, but at 8.30 pm on 13 November he discharged himself against medical advice and left. 14. The hospital later notified AHPRA of his admission and the reasons. 15. On 14 November 2013 the respondent consulted Dr Lucy Ballin and commenced a methadone programme. 16. On 20 November 2013 the respondent sent an email to the Director of ED. He said in that, As recently there has (sic) been enquiries about some S8 prescriptions for Oxycontin with my name on them as prescriber, I hereby wanted to confirm that regretfully these scripts were written by me and that the signatures on them are authentic and mine. It was due to the personal issue/crisis I was dealing with for the last few months for which I have fortunately sought professional help. 1. On 22 November 2013 the respondent sat again for the clinical AMC examination. He was successful. 2. The respondent continued the methadone programme by daily doses for only 11 days. Then he and Dr Ballin discussed and agreed he would transfer to Buprenorphine program on 29 November. But the respondent did not do so. He told Dr Ballin that he didn't feel he needed to. 3. On 29 November 2013 the General Manager of Blacktown/Mt Druitt hospitals wrote to the respondent notifying him of, and detailing misconduct allegations against him including inappropriate prescribing of OxyContin, practising without supervision required by his registration, breaching his employment contract, failing in his duty of care to patients by inappropriately prescribing S8 drugs, failing to provide timely and appropriate notification to his employer of his impairment, potentially compromising patient care by practising whilst under the influence of drugs or alcohol and "participating in activities which may be considered fraudulent and/or criminal in nature". 4. On 9 December 2013 the Director of ED convened a disciplinary meeting regarding the alleged conduct of the respondent described in the letter of 29 November 2013. Present were the Director, the respondent, the Human Resources Manager of Blacktown and Mt Druitt Hospitals, and the HR Consultant for the hospitals. 5. At that meeting he said he started self medicating with OxyContin in June 2013. He said all the patient names on the scripts were fictional. When it was suggested that there were more than 10 scripts, he responded: "I didn't think it's 2 figures, but if you say so." He said that before his admission to Ryde Hospital he had been taking four 80 mg OxyContin tablets per day. 6. In early December 2013 the NSW Medical Council convened proceedings under Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") and a hearing occurred on 11 December 2013. As a result, with effect from 13 December 2013 the following conditions were imposed on his registration: Practice Conditions 2013 1. Not to possess, supply, administer or prescribe any drug of addiction (Schedule 8 drugs). 2. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by 20 December 2013. 3. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 4. To authorise the Medical Council of NSW to notify his employers of any issues arising in relation to compliance with any of his conditions. 5. Within seven days of 13 December 2013 to furnish the Medical Council of NSW with evidence that he has provided a copy of the practice conditions on his registration to his employer. 6. Within seven days of a change of employer, to furnish the Medical Council of NSW with evidence that he has provided a copy of the practice conditions on his registration to his employer. 7. To authorise and consent to any exchange of information between the Council and both Medicare Australia and the Pharmaceutical Services for the purpose of monitoring compliance with these conditions. Health Conditions 1. Not to prescribe for self-medication. 2. Not to self-administer: 1. any Schedule 4D or 8 drug. 2. any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner. 1. That should he be prescribed or directed to take a 1. Schedule 4D or 8 Drug, 2. narcotic derivative, 3. non-prescription compound analgesic or cold medication, he must agree to notify the Council Appointed Psychiatrist and the Medical Council of NSW. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner. 1. To attend for thrice weekly Urine Drug Testing in strict accordance with the Medical Council of NSW's protocol. Results of Urine Drug Testing to be forwarded to the Council Appointed and treating practitioners and to the Council. He understands that such Urine Drug Testing will be at his expense. 2. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 3. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 4. That at least one of his treating practitioners specialise in addiction medicine. 5. To take any medication prescribed by his treating practitioners. 6. That the extent of his professional medical duties be guided by his health status and the advice of his treating and Council Appointed Practitioners. 7. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Medical Council of NSW, at the Council's expense. 8. To attend a Review Interview at the Medical Council of NSW in three months or as otherwise directed by the Council. 9. To authorise the Medical Council of NSW to forward copies of the section 150 decision, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners 1. The Respondent on 17 December 2013 attended an interview by representatives of the Pharmaceutical Services Unit. He had by then admitted writing the 3 prescriptions he had previously said were forgeries. In that interview he said the tablets were used by him to treat pain in a shoulder, anxiety, insomnia and panic attacks and the maximum dose he used initially was 20 mg per day, but it increased. At its worst he said he used 160 mg per day and later he said "Maybe some days " he used 240mg". He said he "had a stash" of the 80mg tablets. 2. When asked how many scripts he wrote, he said "should've been a few". He said that patient names were fictitious and "There were basically Tony Tantaro and Raffar Adjabi, these two." He also said that the number of the prescriptions he wrote for the OxyContin was "less than a 2 digit number" (i.e. not more than 9). 3. He denied having had any of the Scripts filled by pharmacies at various suburbs where he had in fact done so. He falsely denied having had more than 20 scripts filled at one pharmacy. When asked to look at the relevant Scripts filled by that pharmacy, and say whether he wrote them, on advice from his lawyer, he declined to answer. He vehemently denied having obtained payment for writing scripts. He did not deny that the suspect scripts were for more than 2,800 tablets, which over 8 months averaged about 11 tablets per day. And he responded, "Well, to be honest with you, at the time I actually decided to—I had, like, many tablets which I destroyed". When asked where, he said "toilet". When he was asked how he could justify the fact that some of the names he said were fictitious were names of "real people", he responded, "they're common Iranian names." 4. His registration continued until 18 January 2014 when he failed to renew it. He resigned his employment in February 2014 after disciplinary procedures were taken by his employer. On 3 March 2014 a further s150 enquiry decided to recommend that the conditions on his registration be continued. On 29 August he applied for General Registration and that was approved by AHPRA in March 2015 subject to the conditions. He was unregistered until 23 March 2015 when he was granted general registration subject to the conditions. The Respondent commenced working as an employee General Practitioner in a group general practice at Mt Kuringai in June 2015, where he is still working. 5. A Review Interview was conducted by delegates of the Medical Council of NSW on 21 January 2016. The Reviewers recommended in their report that there be no change to the conditions imposed on his registration. He is currently re-registered as a General Practitioner with the conditions. 6. Since June 2015 the respondent has been working 9 hours per day, 5 days a week (not Mondays and Fridays). Since April 2015 the results of his thrice weekly urine drug tests have been clear. The Evidence 1. The evidence comprised: 1. Volumes 1 and 2 of documents filed by the HCCC, indexed and tabulated. The documents under tab 62 are timesheets for the respondent of the hospitals for the pay periods 18 February 2013 to 25 November 2013; 2. The amended reply to the application filed by the respondent on 22 October 2015; 3. Statutory Declaration of the respondent made 15 February 2016; 4. Statement of Agreed Facts and Issues; 5. Review interview report from Medical Council for Review Interview with respondent on 28 January 2016; 6. Witness statement of respondent dated 29 February 2016; 7. Exhibit R1 – internet reviews of respondent by patients; 8. Exhibit R2 – documents from Commonwealth Bank in relation to respondent's bank accounts; 9. Bundle of documents relied on by the respondent and tabulated A – D; 10. Oral evidence of Dr R Fisher on 7 March 2016; and 11. Oral evidence of the respondent 7 March 2016 and 8 March 2016. Complaints 1. The Complaints are: COMPLAINT 1 It is alleged that the respondent is guilty of unsatisfactory professional conduct under section 139B(a) and (I) of the National Law in that the practitioner has: (1) 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 (2) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT 1 The practitioner obtained his medical degree in 2008 in Iran. He migrated to Australia in November 2008 and practiced predominantly in emergency medicine. From approximately January 2010 until approximately 10 February 2014, the practitioner worked at Blacktown Hospital and Mr Druitt Hospital in Emergency Departments. PARTICULARS OF COMPLAINT 1 (1) During the period 17 March 2013 and 30 October 2013, the practitioner wrote prescriptions for a Schedule 8 drug of addiction for the purposes of the Poisons and Therapeutic Goods Regulation 2008 (NSW), specifically OxyContin 80mg, in the quantities and on the dates outlined in Schedule B and Schedule C to the Complaint, to fictitious persons or persons he knew the OxyContin 80mg was not intended for, and diverted the medication dispensed under the prescriptions for his own use. (2) By his conduct at particular 1, the practitioner acted contrary to clause 78(1) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) by issuing the prescriptions for a drug of addiction otherwise than for medical treatment. (3) During the period 17 March 2013 and 30 October 2013 the practitioner presented the prescriptions specified in Schedule B and Schedule C to the Complaint to pharmacists for dispensing, and in doing so, made false representations to the pharmacists to obtain the medication, contrary to the provisions of s17 of the Drug Misuse and Trafficking Act 1985 (NSW). (4) The practitioner self-administered some but not all of the medication specified in Schedule B and Schedule C to the Complaint contrary to the provision of s12 of the Drug Misuse and Trafficking Act 1985 (NSW). (5) The practitioner self-administered a Schedule 8 Drug of addiction, specifically OxyContin 80mg, on occasion on days when he was rostered on duty and / or worked at the Emergency Department of Blacktown and / or Mt Druitt Hospital. COMPLAINT 2 It is alleged that the respondent is guilty of unsatisfactory professional conduct under section 139B(l) of the National Law in that the practitioner has: (1) Engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT TWO Proceedings under section 150 of the National Law were convened on 11 December 2013 following the notification of the practitioner's misuse of OxyContin 80mg tablets. With effect from 13 December 2013, conditions were placed on the practitioner's registration. Section 150 proceedings on 3 March 2014 were convened, regarding the practitioner's prescription of OxyContin 80mg, but no further action was taken. PARTICULARS OF COMPLAINT TWO (1) The practitioner mislead and/or misinformed the Medical Council of NSW and/or the Health Care Complaints Commission during their investigations concerning his continuing treatment and therapy for opiate additional in that he: 1. informed the delegates of the Medical Council of NSW on 11 December 2013 that he was seeing Dr Usman Malik, psychiatrist, weekly or words to similar effect; 2. informed the delegates of the Medical Council of NSW on 11 December 2013 that he would be attending and/or was enrolled in the Phoenix 6 drug and alcohol outpatient program; 3. informed the delegates of the Medical Council of NSW on 3 March 2014 that he saw his general practitioner, Dr Lucy Ballin, three weeks prior and he was due to see her the following week; 4. informed the delegates of the Medical Council of NSW on 3 March 2014 that he had been seeing his psychiatrist, had attended two appointments with Dr Usman Malik, psychiatrist, and had telephone conversations with him; and/or; 5. informed the Health Care Complaints Commission through his lawyers on 13 February 2015 that he had consulted Dr Malik regularly since at least July 2014. COMPLAINT 3 It is alleged that the respondent is guilty of unsatisfactory professional conduct under section 139E of the National Law in that the practitioner has: (1) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (2) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT THREE As for Complaint One and Complaint Two PARTICULARS OF COMPLAINT THREE As for Complaint One and Complaint Two COMPLAINT 4 That the respondent has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine. BACKGROUND TO COMPLAINT FOUR As for Complaint One and Complaint Two In November 2013, the practitioner attempted to self-administer what he thought was methadone to treat his opioid dependence resulting in him losing consciousness and being taken to hospital. The practitioner discharged himself against medical advice without seeing drug and alcohol specialist review. As at February 2015, the practitioner had not attended the Hills Clinic's phoenix 6 alcohol program despite the recommendation of his treating medical practitioners. As at February 2015, the practitioner had been diagnosed with Narcotic dependence in remission. PARTICULARS OF COMPLAINT FOUR The practitioner suffers from narcotic dependence. Complaint 1 - Findings Particular 1 of Complaint 1 1. In his amended reply filed 22 October 2015, the respondent said that he does not admit this particular. He stated: "He denies he wrote prescriptions in quantities and dates as set out in Schedule B and Schedule C and says that as between July and October of 2013 he obtained OxyContin to medicate his anxiety". The evidence clearly establishes that he in fact commenced the prescribing and use of OxyContin from early March 2013. By 30 October 2013, 51 scripts had been written by him on prescription forms of the hospitals and dispensed at private pharmacies. 2. He concedes that he developed physical dependence on OxyContin. 3. Because the respondent was working in public hospitals and did not have a provider number for purposes of pharmaceutical benefits or Medicare cover, he paid about $180 - $230 for a pharmacy to dispense and supply each prescription. If, for example, the average charge was $200.00, then he paid a total of about $10,600 for the 51 prescriptions to be dispensed. 4. In relation to particular one of complaint one, the respondent does not dispute the particulars or evidence supporting it. He said in his statement dated 29 February 2016 "I do admit (as I have always done) that I did write prescriptions and presented prescriptions to obtain OxyContin for myself. But I do not now clearly recall the number of prescriptions I wrote for myself and when I started doing that. I have the impression that I wrote the prescription starting in about July 2013 and that is what I remembered. If the applicant's records show that this commenced earlier, then I accept that". 5. When the respondent was interviewed by Mr Smith from the Pharmaceutical Services Unit of NSW Health ("the PSU") on 17 December 2013 in the company of his solicitor, Mr Kouchoo, the respondent stated that at the time of this conduct, he was "desperately addicted to OxyContin" and "really sick". He also said "I was addicted to them. I was desperate". 6. There are 8 patient names used by the respondent as the patients for whom he was prescribing OxyContin in the 51 scripts. One of the patients is Adam Ebadi, also known as "Adam Abadi". He is a friend and associate of the respondent. When the respondent was admitted to Ryde Hospital for an overdose, he nominated Mr Abadi as his next of kin. 7. Sixteen of the 51 scripts for OxyContin written by the respondent purported to be for Adam Ebadi. 8. Even in cross examination at the hearing, the respondent continued to claim that the other names were fictitious names that he had invented and were not names of any patients. But PSU staff discovered that some of the patients were real people who had been on or were on a methadone program, and some had the same addresses. 9. It is clear also that he knew on each of 51 occasions that the OxyContin, was not intended for the patient named on the prescription and diverted the medication dispensed by the prescription for other purposes. 10. Particular 1 of complaint 1 is established. Particular 2 of Complaint 1 1. The respondent in his amended reply "does not admit that he contravened any law or legislation". 2. It is common ground in the proceedings that OxyContin is listed in Schedule 8 of the Poison's List under Section 8 of the Poisons and Therapeutic Goods Act 1966. Section 4, the definitions section of that Act, provides that "drug of addiction" means any substance specified in Schedule 8 of the Poison's List. 3. Section 84 of that Act provides for regulations preventing the improper use of drugs of addiction. Regulation A78 of the Poisons and Therapeutic Goods Regulation 2008 limits the purposes for which prescriptions made be issued for addictive drugs. It prohibits a Medical Practitioner issuing a prescription for a drug of addiction otherwise than for medical treatment (Reg 78(1)). 4. It is clear that, as alleged in particular 2 of complaint 1, the respondent breached that provision on each of the subject 51 occasions that he wrote a prescription for OxyContin. 5. Particular 2 of complaint 1 is established. Particular 3 of Complaint 1 1. In his reply to Particular 3 the respondent repeated: "He denies he wrote prescriptions in quantities and dates as set out in Schedule B and Schedule C and says that as between July and October of 2013 he obtained OxyContin to medicate his anxiety" and "does not admit that he contravened any law or legislation". 2. Section 17 of the Drug Misuse and Trafficking Act 1985 (NSW) provides: A person who knowingly, by any false representation (whether verbal or in writing, or via conduct) obtains or intends to obtain a prohibited drug from a medical practitioner, nurse practitioner, midwife practitioner, dentist, pharmacist, or veterinary practitioner is guilty of an offence. 1. In respect to each of the 51 prescriptions, the evidence establishes that in order to have the prescription dispensed, the respondent falsely represented to a pharmacist that the prescription was for medical treatment of the person named as the patient on the prescription. On each occasion he breached Section 17. 2. Particular 3 of complaint 1 has been proved. Particular 4 of Complaint 1 1. In his reply to Particular 4 the respondent repeated: "He denies he wrote prescriptions in quantities and dates as set out in Schedule B and Schedule C and says that as between July and October of 2013 he obtained OxyContin to medicate his anxiety" and "does not admit that he contravened any law or legislation". 2. Sub-Section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) provides that it is an offence for a person to have possession of a prohibited drug. There are exceptions set out in Sub-Section 10(2), but none of them apply to the respondent's possession of the OxyContin dispensed for any of the 51 prescriptions he issued. On each of 51 occasions he breached subsection 10(1). 3. Particular 4 of complaint 1 has been proved. Particular 5 of Complaint 1 1. In his reply to Particular 5 the respondent repeated: "He denies he wrote prescriptions in quantities and dates as set out in Schedule B and Schedule C and says that as between July and October of 2013 he obtained OxyContin to medicate his anxiety" and "does not admit that he contravened any law or legislation". 2. Section 12(1) of the same Act provides that a person who administers or attempts to administer a prohibited drug to himself or herself is guilty of an offence. The exception in Sub-Section 12(2) does not apply to the respondent. 3. The evidence establishes that the respondent self-administered some of the OxyContin in the 51 scripts and each time contravened Section 12. 4. Particular 5 of complaint 1 has been proved. Particular 6 of Complaint 1 1. The Respondent in his reply said "The respondent does not admit self administering any drug on any days rostered for work". In his evidence and submissions it appeared that he was denying that he had a plan, habit or purpose of going to work affected by the drug. But that was not the allegation in the particular. 2. He testified in the section 150 hearing on 11 December 2013 that "but actually in the morning if I wake up and I see I'm withdrawing, I don't have that energy, I used to take one tablet. Basically it made me just normal. That's what I want to really substantiate here." His own statements (e.g. at Ryde Hospital) and other evidence of his also supports the finding of the Tribunal that often on days when the respondent was rostered for work at Blacktown or Mt Druitt hospital he self-administered OxyContin in the morning before he went to work and was still affected by that when he attended at work. There are also the records regarding his arrival at work on one occasion dishevelled and untidy. Despite his different explanation, on all the evidence the Tribunal finds on the balance of probabilities that he was affected by OxyContin that he had self administered before coming to work. 3. Particular 6 of Complaint 1 has been proved. All of the particulars of complaint 1 have been proved. 4. The evidence establishes that the conduct proved under each particular of complaint 1 falls within the meaning of unsatisfactory professional conduct under Section 139B(l) of the National Law, particularly para 139B(1)(a) in that the respondent "engaged in conduct that demonstrates that 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". 5. It also establishes under para 139B(1)(l) of the National Law that it was unsatisfactory professional conduct in that the respondent "engaged in improper and unethical conduct relating to the practice or purported practice of medicine". 6. Accordingly, complaint 1 is proved and constitutes unsatisfactory professional conduct. Complaint 2 - Findings 1. The Respondent's Amended Reply filed 22 October 2015 included a lengthy reply to complaint 2. He denied he "in any way, intentionally misled or misinformed the Medical Council on 11 December 2013". Generally his reply does not address the particulars of the complaint. 2. There is clear documentary evidence of all the alleged statements and other evidence that proves each of them false in circumstances where it appears he knew they were false. His evasive and unconvincing oral evidence about these matters did not cause the tribunal to doubt that he made the statements, that they were false and that he knew they were false when he made them. 3. The evidence is that his addiction was in remission at the time of these representations. The Tribunal finds that on the 5 occasions particularized he intentionally made false statements to the Medical Council or the HCCC to mislead the body about what treatment he had undertaken, or was undertaking, for his opiate addiction. 4. He denied the conduct would constitute unsatisfactory professional conduct. The Tribunal disagrees. The finding is that the conduct came within para 139B(1)(l) of the National Law description of unsatisfactory professional conduct as it was seriously "improper and unethical conduct relating to his practice of his profession". 5. Complaint 2 is proved. Complaint 3 - Professional Misconduct - Findings 1. Complaint 3 is that the conduct under complaints 1 & 2 together constitute professional misconduct. Para139E (b) of the National Law provides that professional misconduct includes "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". 2. The evidence establishes, and the respondent concedes, that he has a drug addiction. The instances under complaint 1 are very extensive and all involved extensive contraventions of the law. They include extensive instances of dishonesty. Under complaint 2 all the incidences involve dishonesty. They occurred when his addiction was in remission. On each occasion the false representation was made intentionally to mislead an authority. Two of the incidents occurred at each of the hearings under Section 150 of the National Law on 11 December 2013 and 3 March 2014. 3. The Tribunal finds that taken together the conduct under complaints 1 and 2 comes within the definition of Professional misconduct in section 139E of the National Law as it amounts to "conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration". Complaint 4 – Impairment - Findings 1. After the respondent discharged himself from Ryde Hospital against medical advice and without waiting for an assessment, he saw Dr Ballin, who specializes in addictions, and commenced a methadone programme. He terminated that after only 11 days. Contrary to his agreement with Dr Ballin and her advice, he then refused to undertake a programme using Buprenorphine to manage his opiate dependence. 2. He resumed seeing Dr Ballin again in July 2014 and saw her on 6 November 2014, 22 January 2015, 9 February 2015, 26 March 2015, 29 May 2015, and 21 September 2015. 3. He first saw Dr Usman Malik, a psychiatrist, on 5 December 2013. He did not bring a referral and attended for a "one off" assessment. 4. Dr Malik reported, in reliance upon what the respondent told him: "he began using OxyContin in July 2013 when he discovered it helped him sleep and stopped his anxiety. In October 2013 he increased his dose of OxyContin to 80mg as he became dependent upon this drug. He subsequently started to take Buprenorphine 4mg as well." 5. Dr Malik prescribed medication for anxiety disorder. He recommended that the respondent attend the "Phoenix 6 – Outpatient Drug & Alcohol Programme at Kellyville". The respondent did not attend or contact the Phoenix 6 Programme. 6. The respondent did not see Dr Malik again until 11 September 2014, 9 months after his first appointment. He then saw him in October 2014, January 2015, May 2015, September 2015, November 2015, and February 2016. 7. However, the respondent was required by the Medical Council to attend for assessment by Dr Fisher and the first attendance occurred on 10 September 2015. 8. Dr Fisher saw him again on 23 November 2015. 9. Since April 2015 the respondent's thrice weekly urinalysis test results have been clear. He has been cohabiting with his girlfriend since May 2014. She has been training as a nurse and was to complete her degree at the end of 2015. 10. The respondent told Dr Fisher that he did not participate in the Phoenix Rehabilitation Program because it is "extremely expensive". Dr Fisher suggested to him at the consultation in November 2015 that he attend the Doctors In Recovery Group at Northside Clinic. Those meetings occur once per week. His attendances there appear to have not commenced till about a month before the hearing and in that month he attended on 3 occasions. The respondent told Dr Fisher: 1. He had completely abstained from opioid prescription drugs or the use of any other prohibitive substance; 2. He had no temptation to use any such drugs; 3. He was continuing to see Dr Malik and Dr Ballin; 4. He reported a "euthymic" and stable mood and that he was sleeping well and free of any physiological symptoms of major depressive disorder; 5. He reported freedom from any other psychiatric symptoms; 6. He had lost 1kg in weight and is about to start playing tennis on Friday mornings with his girlfriend; 7. He reported his hypertension was well controlled on medication; 8. He reported no other general physical problems. 1. Dr Fisher reported that the respondent presented "in a well-kempt state", engaged warmly, and was "neatly and smartly attired". 2. Dr Fisher also reported that the respondent's speech was normal in form and flow and there was no indication of intoxication with drugs or alcohol at the time of assessment, and it appeared "his cognitive function was intact". 3. The conclusions reached by Dr Fisher are as follows: 1. He has previously developed a dependence upon the opioid drug OxyContin, but has now had, on his own report, over 6 months of thrice-weekly supervised urine drug screens free of prescribed substances. He said that he has no temptation to use opioid drugs; 2. He remains euthymic and stable in mood and denied suffering by any psychiatric symptoms; 3. He is still carrying excessive weight but says that his hypertension is under control and he reports no other general medical problems; 4. Reports feeling very happy in general practice and intends sitting for the Fellowship of the Royal Australian College of General Practitioners in due course. 1. Dr Fisher's opinion was that the respondent was "making very good progress and remaining abstinent from opioid drugs and also from any other prohibited substances". He said that he believed the respondent should attend the Doctors In Recovery Group on a Monday night as an indication of his commitment to abstinence. He also recommended that the respondent should remain on the Impaired Registrant's Program under the current conditions. 2. In oral evidence, Dr Fisher said that the respondent did not admit any of the subject occasions of use of OxyContin before July 2013. He did not disclose his use of Endone as far back as December 2009. 3. Dr Fisher said that the respondent described multiple stressors as failure of exams, the death of his mother, and the breakup of a relationship. He said that the maximum dose of OxyContin that the respondent had disclosed was 80mg twice per day. 4. Dr Fisher concluded that the respondent suffers from a drug addiction which is in remission. He considers that the thrice-weekly urine samples should continue in order to give the Medical Council a high level of confidence. Dr Fisher's opinion is that the respondent has an impairment under the definition of impairment under the National Law that impairs his capacity to practise medicine safely. He said that the risk of relapse is real and it is common with such an addiction to breach a condition of registration by relapse. He recommended that the respondent be required to authorise his specialist, Dr Ballin to notify the Medical Council if he is suspected of relapsing. 5. Dr Fisher said that he was aware that the quantity of drugs accessed by the respondent was "far in excess of the use that he admits". He said that "if it were 2,856 80 mg tablets, in 7 ½ months and amounted to an average of 13 per day, "I've worked in pain clinics where opioid medication is dispensed regularly. I have never encountered a patient taking that amount per day". 6. However, he did say that a person could use large amounts and continue to work. He said "if he was consuming that amount, it is huge quantities beyond anything that I've encountered". He said that he would be greatly surprised if the respondent could then overcome the addiction by 11 days on a methadone program, but it was possible. 7. He said that he understood when the respondent tried to stop using OxyContin had serious withdrawal problems. 8. Dr Fisher acknowledged that from the information that he had that the respondent had made progress in terms of his intimate relationship, his work, and his health. He said that if he lapsed then there was risk of impairment. He said that some users can continue without impairment, but it is more usual that the drug affects the ability to focus and to function well as a medical practitioner. 9. He said "the conditions reduce risk; they don't prevent a relapse". 10. In answer to a question from the panel, Dr Fisher said that he considered a reasonable time for release from the Impairment Program would be 3 years from an impairment incident. 11. The respondent has expressed enthusiasm to resume prescribing addictive drugs for patients. Dr Fisher said that that could be a first step (if the respondent is otherwise compliant) but he should not be permitted to possess or access the drugs. 12. When asked where he sees the respondent on the pathway to resuming prescribing, Dr Fisher said that his results for urinalysis thrice weekly and hair testing is "very good and gives some confidence". 13. In his report to the Medical Council of 26 February 2015, Dr Malik said that the respondent was continuing to take the prescribed medication "for his anxiety and obsessive compulsive symptoms". He recommended that the respondent attend "for ongoing psychological support in a group setting, such as the Phoenix Ten (10 month program) and Phoenix Six (6 month program) at Kellyville". He said that "these programs are designed to cover relapse prevention strategies for patients with drug and alcohol abuse disorders". He also recommended that the respondent continue to attend on Dr Malik to follow up and monitor ongoing anxiety levels. He said "I believe his untreated anxiety and obsessive compulsive symptoms put him at a higher risk of drug abuse in the past, as he found that the drugs of abuse had anxiolytic properties". 14. Dr Malik in that report said that "his diagnosis is one of Anxiety Disorder NOS (not otherwise specified) with Obsessive Compulsive Symptoms, as well as narcotic dependence in remission". 15. Dr Malik's next report was on 17 September 2015. He reported that there had been a change in medication and that the new medication seemed to be "working well to control his symptoms" and he said: "…he is in a stable relationship, and in stable employment in a medical clinic. He continues to attend for appointments with me, as well as for his urine drug screening program. His mood remains euthymic and his affect reactive. His anxiety and OCD symptoms are well controlled on the Sertraline, and his narcotic dependence remains in prolonged remission". 1. The most recent report from Dr Malik dated 26 November 2015. He had seen the respondent that day. He referred to previous diagnosis and there was no change since his previous reports except in relation to minor difference in medication, and also he stated "I'm hoping to wean him off Sertraline over the next couple of months". 2. Dr Malik was not required for cross examination. 3. The Tribunal concludes on the evidence that the respondent has an impairment, namely a drug addiction, and it is currently in remission. The Respondent – Issues of Credit and Integrity 1. When he was contacted by PSU on 13 September 2013 about 3 of the scripts, he lied. He denied that he wrote them and said they must have been forgeries. 2. When he self notified the Medical Council by telephone on 18 November 2013 he lied when he said his drug abuse had been "for 2 months" and when he said he had been having 2 weeks treatment. 3. In these proceedings the respondent's evidence is that he never used any of the illicit OxyContin or methadone intravenously. The records of ambulance staff who attended him and conveyed him to hospital on the night of 12 November 2013 recorded that on examination "track marks are on bilateral forearms" and "Poor vascular presentation and unable to be cannulated". The hospital records refer to problems installing a cannula there, statements by him admitting intravenous use, and (at page 77 of the hospital records) there is a record that he told a staff member that he "was initially taking OxyContin as 'gives you heaps of energy' – was injecting it into wrist but mainly digesting it". The Tribunal finds on the balance of probabilities that prior to his admission to Ryde Hospital on 13 November 2013 he had been using OxyContin intravenously and his denials were false. 4. He was admitted to Ryde Hospital on the night of 12 November 2013. He lied repeatedly about his use of drugs of addiction. 5. In his self-reporting email of 26 November 2013 to the medical council, the contents of which he affirmed in his statutory declaration of 7 December 2013 he lied when he said his abuse of OxyContin had been "for a period of 3 months" up to October. He also said it was "40 to 80mg daily" which statements are contradicted by his evidence in these proceedings. Both those statements were false. 6. He also said he had "completely stopped abusing OxyContin 1 Month ago", But that was untrue. He had had prescriptions (each for 56 tablets) dispensed on October 5, 6, 9, 17, 22, 30, and 31, 2013. 7. He stated that he had "sought the help of a professional psychiatrist (Dr Usman Malik) and I am determined to see him on a regular basis to overcome whatever issue led me to this crisis". But he had not consulted with Dr Malik. He had merely made an appointment for 5 December 2013. 8. In his email to the Medical Council of Australia of 26 November 2013 he said "I am currently under medical treatment by Dr Lucy Ballin and as it goes hopefully I will come off medical treatment very soon". Dr Ballin's notes of his consultations with her are in evidence. The notes of the first consultation (14 November 2013) record that he told her that his OxyContin use lasted 2.5 months, which was a lie. He also said his use was 80 mg 4 times per day which is inconsistent with his evidence in these proceedings. 9. He made a statutory declaration on 7 December 2013 apparently for the section 150 hearing on 11 December 2013 and in it he falsely stated that: * his self medication with OxyContin lasted about 3 months; and * he took 40mg to 80 mg per day. 1. When PSU officers interviewed him on 17 December 2013, he said he had ceased treatment for the OxyContin addiction because he decided he no longer need opiate substitution therapy any more. He lied when he said: * He started the prescribing in "late May and June, late June" (It was early March); * He wrote "a few" of the scripts; * The patients' names were all fictitious; * The number of subject scripts was "less than a 2 digit number"; * That he hadn't had any of the scripts filled at Quakers Hill; * That he hadn't had any of the scripts filled at Cabramatta; * That he "definitely" didn't have 20 scripts filled by one pharmacy (one filled 27); and * That some of the scripts could have been fraudulently written by someone else. 1. In his interview with PSU staff on 17 December 2013, he talked about a period when OxyContin had been prescribed for him by a doctor prior to him self prescribing. He purported in the hearing that OxyContin had been prescribed for him from 2003 by other doctors when he suffered a shoulder dislocation "like, ten, fifteen times", and that then in 2009 he fell and broke his humerus and he had surgery involving fixation with pins and screws. He said the ongoing prescriptions for pain were for OxyContin because he is unable to take Panadol and suffers gastritis. He said he is required to also avoid taking some specific antibiotics. When that was put to him that he made no reference to any shoulder dislocation in the interview by the PSU staff, he said, "the people were so disrespectful, I lost the plot". 2. When it was put to him again that he didn't tell them of the shoulder dislocation he avoided the question. When it was put to him that he didn't disclose any shoulder dislocation in either of the Section 150 hearings, he replied "could have been". 3. Then it was put to him that he told Dr Fisher that he had a shoulder dislocation in May 2013 and OxyContin was prescribed. He answered "I don't recall". It was put to him that he said that it was prescribed for a shoulder dislocation in May 2013 and he avoided the question. 4. He was given a caution then by the presiding member about the importance of answering questions and not being evasive. But he continued such behaviour. 5. He was asked with reference to his statement that he "had a few. I had a stash" why he obtained another script for OxyContin. He answered "I don't know. I'm confused". 6. When asked when he now says that he started the use of OxyContin in May or June 2013, he answered, "2 or 3 months after the new year". He said that the Persian new year differs and commences "about March or April". He was still denying he started in March. 7. When asked then why he has previously said it was July / August that he commenced. He answered "I thought it was closer to March than July". He did not deny the false statements. It was put to him that in his statement of 29 February 2016 he did not disclose that. He avoided the question and responded, "in that period I asked my cousin when he came to Australia because it was about then". 8. When asked what dosage and what frequency he was using OxyContin in March 2013, he answered "20 mg, twice per day – or maybe every other day". This contradicted other versions that he has given. 9. Similarly, when he was asked when his dosage went as high as 80 mg, and he answered "especially around the Medical Council test. I think it was in June" and "I might have taken the 80 mg table and broke it into 2". As recently as his reply of 22 December 2015 many of the responses to the complaints the respondent set out on his Amended Reply were shown by the evidence to be false and appeared to be propositions that he knew at that time were untenable. 10. In his unsworn witness statement dated 29 February 2016 the respondent stated "I have been attending 'Doctors In Recovery' meetings". They are held on Monday nights at Northside Clinic. He did not disclose when he had commenced attending. But in his evidence in cross examination it emerged that although he does not work on Mondays his attendance at Doctors in Recovery has been irregular. His oral evidence was that he attended 3 times in the month before the hearing. 11. In his oral evidence he again denied any intravenous use of drugs. When he was referred to the records of the Ryde Hospital, where he had told a staff member that he had been buying OxyContin from the black market in the last 2 months, he said "I was confused". He then agreed that he wasn't obtaining OxyContin from the black market and "I might have said that to down play". 12. In another part of the records it was stated that he told hospital staff that he had been using OxyContin for more than 3 months from the black market. When he was asked whether he told the psychiatric registrar that, his response was "no, I never did talk to the registrar". The question was repeated and he then replied "I absolutely have no recollection". 13. His attention was drawn to the hospital records where it was stated "he takes IV drug methadone to have energy for work" and he was asked whether he told the staff that. His reply was "I don't remember". 14. When he asked who his treating General Practitioner was between 2009 and 2013, he said he couldn't say. He also conceded that he couldn't say who (he alleged) prescribed him OxyContin in that period. (However in the interview with PSU staff on 17 December 2013 he said that when he had the surgery on his arm, the surgeon, Professor George Murrell, "suggested that the best option would be OxyContin." 15. When he was asked whether when interviewed by local health service representatives, he gave his answers honestly, he replied "I tried to". It was put to him that at no time did he see a particular doctor in 2013, and his response was "I might have". 16. It was put to him that the evidence is that up to 2014 he was using up to 120 mg per day of OxyContin. His response was "sometimes more or less". When asked what was the most he consumed, he said "2 x 80 mg plus 1 x 40 mg". When he was asked if it was never any more, he paused and said "3 x 80 mg maybe. I'm not sure". 17. He was cross examined about the history that he gave Dr Ballin of having used "OxyContin for only 2 ½ months use 4 x 80 mg tablets" and said he didn't recall giving her that history. He said he went to her because she was a specialist in drug addiction. He conceded that he knew that it was important to give her an accurate history. It was put to him that he gave her a different history. He denied it. After the presiding member repeated the question, he conceded the proposition. 18. In his statement of 29 February 2016, he stated "I do admit (as I have always done) that I did write prescriptions for OxyContin". But when it was put to him that he hadn't always made that admission, he responded "yes I have". His documents, including his Amended Reply, demonstrate that was untrue. On the balance of probabilities he knew it was untrue when he said it. 19. There was then some cross examination about his statement at the interview by PSU staff on 17 December 2013 when he said the number of offending prescriptions that he wrote "shouldn't be a 2-figure thing. I agree with that". It was drawn to his attention that he had now admitted to 51 such scripts. He answered that that was "not more than double digits". 20. He then purported that what he had said was "not more than double digits" and that that meant "less than 100". That was false. 21. After some clarification, it was put to him that what he said meant "less than 10". He avoided the question. When the question was repeated he eventually conceded the proposition. 22. When he was asked about his denial in the same interview that he wrote more than 20 scripts for the same pharmacy, he conceded that the schedule to the complaint showed 26 dispensed by 1 pharmacy. 23. It was put to him that in his Section 150 evidence where he spoke of a "culprit", that he was the culprit. The answer was "no. At the time I didn't have the recollection that I had bought that number. I was under the impression it was much less". It was put to him that he attended the particular pharmacy on 26 occasions and he answered "if you say so". 24. He was asked about what he did after he withdrew from the methadone program and he said "I went through the withdrawal". 25. He was asked whether he answered the questions raised by the Medical Council honestly and he replied "to the best of my knowledge, yes". 26. When he was asked whether he recalled, and being asked about, the names on the scripts, he said "I don't recall". He conceded that he said previously that the names were all Iranian names. And he conceded that he said to the investigator from the PSU of "Baba Safor – "I don't know what kind of name that is" but at the time he in fact knew the name as an Iranian name. 27. He denied that he mislead the Medical Council at the first Section 150 hearing about the names. Then he said he "may have misheard what was said". 28. He conceded in cross examination that at the disciplinary interview on 9 December 2013 he admitted that he had worked under the influence of OxyContin and that consequently he was working while impaired. Notwithstanding this, in his statement dated 29 February 2106 he stated "I do not recall taking the drug specifically when I was rostered to go to work, and in fact I remember that I especially avoided taking it right before my shifts started". 29. In cross examination when asked about prescriptions for 56 OxyContin tablets on 22 March 2013, and also 23 March 2013, he said "I was highly conflicted. Many times I took it and disposed of the rest of it in a rubbish bin". It was put to him that this was at a time when he was in a "full blown addiction". He replied "but I was in a tunnel and ….fearful of running out but wanting to …..". It was put to him that it was at a time when he said his use was only 20 mg a day. The records show that 3 days later he obtained another 56 tablets. He conceded this and said "when I tried to stop I had anxiety and sleeplessness". 30. He was asked about the prescription obtained on 24 June 2013 and dispensed on 26 June 2013, followed by another prescription issued and dispensed on 26 June 2013. He responded ""I was highly conflicted. Many times I took it and then disposed of the rest in a rubbish bin". Later he said it was "exactly the time I was greedy to have a stash". 31. Then it was put to him that he had previously said that he put some of the tablets down the toilet, but was now saying that he put them in a rubbish bin. He answered "I twice put some in the garbage bin". This was different to his evidence a few minutes earlier when he said it was "many times" that he disposed of them in a rubbish bin. 32. At one stage in his evidence he said that because of the cost of the OxyContin "I ended up with $60,000 loss". But on his evidence, the average he paid to the pharmacies, was less than was $230 per prescription which is a total of less than $26,500.00. 33. He said that he could not explain how some of the names of actual patients of the hospital had been used on the subject prescriptions. He volunteered "hospital prescriptions are easily identified. No-one in their right mind would use them for the purposes that you insinuate" (ie selling the drugs). 34. At the hearing the respondent said that he did not attend a counselling appointment he had for 12 December 2013 because "I was being thrown out" of his accommodation. He said he had nowhere to live because "of financial difficulties". But he conceded that there is nothing in his statement about these matters. He conceded that he did not reschedule the appointment and said "I didn't know how long it would be". 35. The appointment was with Dr Malik. At the Section 150 hearing on 11 December 2013 he gave evidence that he was seeing Dr Malik the following morning at 9:00am. He said "so I'm currently basically seeing him on a weekly basis". He cancelled the appointment for 12 December that morning. He did not see Dr Malik for another 9 months. 36. On 3 March 2014 at the next Section 105 hearing, he said "I'm seeing my psychiatrist" (at p5) and that he had seen the psychiatrist twice (at p10). But the fact was that he had cancelled the appointment for 12 December 2013 and had seen a psychiatrist on only 1 occasion. It was put to him that what he told the enquiry in March 2014 was "a complete falsehood". He avoided the question. It was repeated. It was put to him that he had seen a psychiatrist only once. He answered "correct". It was put to him that what he said was false and he was not responsive. It was only when the presiding member intervened and repeated the question that he eventually conceded that it was a falsehood. 37. He was asked why he had told the enquiry that he had seen a psychiatrist twice, and his answer was "I don't know". He then denied that he intended to mislead anybody. When asked, he said he didn't know whether it was a lie. He conceded that after the first appointment on 5 December 2013 he did not see Dr Malik again until 9 months later. 38. At the March 2013 hearing he said that he was seeing Dr Malik "next Thursday", but he didn't. When he was asked about having said that he had spoken with Dr Malik on the telephone twice, he conceded that this was untrue. He said "I meant I talked to the receptionist to organize an appointment". 39. He conceded that he had falsely stated "I have talked to him on the phone". When it was put to him that he was "misleading the Medical Council that you were under some ongoing therapy with Dr Malik", he avoided the question and volunteered lengthy unresponsive material. When the presiding member intervened and repeated the question, he denied the proposition. When he was asked why he made the statement to the enquiry, he answered "I don't know". 40. On his instructions his solicitor said in his letter of 13 February 2015 to HCCC that "since at least July 2014 Dr Azizi has attended upon Dr Usman Malik regularly and received treatment and medication", but for 9 months from December 2014 to September 2015, he did not have contact with Dr Malik. And even then he attended only one appointment in each of September and October in 2014 and January 2015. When these matters were put to the Respondent in cross examination, he did not respond, 41. In his oral evidence in cross examination on 8 March 2013, he still claimed that the patient names on the subject prescriptions, other than the name Ebadi, were fictitious. When he was asked whether the address shown for Mr Ebadi was correct or fictitious, he avoided the question. When asked if it was his genuine address, he answered "I believe so". But there was other evidence of him previously visiting Mr Ebadi at that address. 42. He insisted even then that the names of the patients were randomly selected by him and "plucked out of the air" and he had never known any person by any of those names (other than Mr Ebadi). 43. When he was asked to explain how some of the names and addresses were of people known to the PSU, he did not respond. When pressed, he said that the Tribunal could not rely on that interview because he was threatened and "lost the plot". 44. When he was asked to identify where in the interview record he was threatened, he answered "before and after the record. It's not included". 45. He conceded that he was accompanied by his barrister at the time. He said the threat occurred in the presence of his barrister. When asked to identify what the threat was, he said: "she said they could get a handwriting expert to prove"" and "saying things in a way that conveys 'if you don't talk we will make you talk'". 46. When asked to elaborate how he randomly selected the names of the patients, he said he took some ("not the whole name") from newspapers. 47. He denied the suggestion that he was part of "an OxyContin ring". 48. At the Section 150 enquiry on 11 December 2013, the respondent testified that he was enrolled in the Phoenix Program commencing in the second half of January 2014. When asked he confirmed that he had enrolled himself. But there is evidence from the Phoenix program that he did not enroll and made no contact with them. When it was put to him in cross examination that his testimony was "entirely false", he answered "not entirely". He conceded that he wasn't enrolled. He said that he intended to enroll but couldn't when he found out the price. When he was asked when it was that he obtained the price, he did not respond. When asked why he told the delegates in December 2013 that he was starting the program, he avoided the question. When asked why he said that he was enrolled, he avoided the question. When it was repeated, he again avoided it. When he was asked whether he didn't have the information as to the costs when he made the statement, his answer was non-responsive and he rambled. When the presiding member repeated the question, he answered "no". 49. He denied that it was a complete falsehood to say "I just enrolled". When asked whether anything stopped him saying instead "I'm planning to enroll", he answered "different people talk in different ways". 50. He denied any intention to mislead the delegates on 11 December 2013. 51. In cross examination about his attendances at Doctors In Recovery, he conceded that he doesn't attend weekly, even though he does not work on Monday nights. He said he has watched "thousands of hours on You Tube regarding addiction – interviews with people". He said that these were people who had been in a drug addiction program. When asked, he could not recall the title of any of those interviews. He was asked why, if he was able to view "thousands of hours" of videos, he had not been able to attend the Doctors In Recovery session once per week. He avoided the question. 52. He conceded that he had only been 3 times to the Doctors In Recovery meetings in the last month. When asked why he hasn't been more often, he said "I don't work on Mondays, I don't see my girlfriend a lot" and "she has a diagnosis with multiple sclerosis". He said that also he works weekends and he is keen to get a good rest, especially on Monday for work on Tuesday. His evidence is that Dr Ballin is his GP for other things besides the drug issue and at times he has asked one of his colleagues. He denies that he ever prescribes for himself. He said that it is a long way to Dr Ballin's surgery and in the next few months he will locate a GP who is located more conveniently 53. At the Section 150 hearing on 30 March 2014, the respondent testified that he had last seen Dr Ballin "3 weeks ago, which I'm going to see her next week". He conceded in cross examination that it was untrue to say that he had seen her 3 weeks before and he knew it wasn't 3 weeks. He said "in my mind maybe I said 'weeks' instead of 'months'" and "it was a "slip of the tongue". 54. When it was put to him that he didn't see her the next week, he avoided the question. When it was put to him a second time, he replied "I intended to, but I didn't….I didn't have the $60". 55. There were numerous questions from members of the panel to the respondent. When asked further about his disposal of the tablets that he said that he did not use, he said that he disposed of them in the bathroom or in the rubbish bin at home or elsewhere. 56. The Respondent's version of how and why he withdrew from the methadone program is in conflict with what Dr Ballin told PSU. She said that the pharmacy that was to issue his methadone reported to her that he had missed a number of doses. He said he started going to other pharmacies for it. She says he then asked to transfer to buprenorphine and after she had agreed and implemented that, he did not present at the pharmacy to commence the treatment. 57. He said in the longer term "when the Medical Council agrees I want to prescribe". He said that he found it was "not pleasant" to tell a regular patient he would have to ask another doctor in the practice to prescribe a medication for pain relief. 58. When asked by a member of the panel, "do you think you are an addict?" he replied "I'm in remission". But he added "there's always a chance of relapse and I will do my best, this remission will last my whole life". 59. When asked what his ongoing treatment would be, he said "stable relationship, friends, a job, sport and Doctors In Recovery". When asked if that was the full extent of what he had done and what he intended to do, he said it was. He said that maybe he is more mature now and "the best thing for me was when I started back at work I will do whatever I have to do". 60. When asked, he said that he is aware of the responsibilities of being a medical practitioner. He agreed that there were special privileges and that medical practitioners have access to people and processes that others don't. He acknowledged that they are entrusted with information and have responsibilities to the community. He says that he is familiar with the code of conduct and ethical requirements for doctors. He conceded that it was a breach of ethics to prescribe for himself. 61. He was asked if prescribing scripts for fictional people fitted with his responsibilities, and he said "a huge unethical mistake. I can't understand why I did it. My ethical position lapsed". 62. When he was asked "if you haven't been candid or answers are not accurate, what are we to make of that?". He answered "I've definitely not at any stage not been candid or hidden anything as you have to act on that". 63. He was asked about the treatment of the addiction and the possible interpretation that the treatment was "quite minimal". He was asked how he could explain such a serious illness with such serious effects with such brief treatment. He did not really provide any responsive answer, but in the course of his answer acknowledged that Dr Malik does not treat him for addiction, but only for anxiety. 64. In his re-examination he was asked why he "got wrong" the dates of his visits to his GP and he replied "what I was going through at that time was the withdrawal, financial complete ruin, anxiety etc, I was not properly sleeping – basically still having general registration – I was overwhelmed – didn't have the sharpness or acuity to deal with the questions". 65. He conceded that he is "desperate to keep his registration". When it was put to him that he would "do whatever it takes" he responded "no, I don't have to tell any lies". 66. The respondent gave extensive oral evidence and evidence in his statements filed. He was in the witness box for more than 5 hours. He presented as particularly assertive and argumentative. Frequently he avoided questions, even when repeated. He also often volunteered answers that were not responsive to the questions. He presented as extremely evasive. On numerous issues his versions to the tribunal were inconsistent with a version he had previously given. Much of his evidence was inconsistent with uncontested evidence. Taking all this into account and also the numerous occasions where he made false statements including those to medical practitioners, to the Medical Council, to a section 150 hearing, and to this Tribunal, the Tribunal has concluded that the respondent is a very unreliable witness who has often lied in relation to his addiction, and other issues in these proceedings. Tablets disposed of. 1. The Respondent's evidence as to what happened to about 2,400 80mg OxyContin tablets that he did not use is that he put them in the garbage or the toilet. He testified he paid $180 to $230 for pharmacies to dispense each prescription for 56 tablets. That is a total outlay in the range of $8,471.00 to $9,857.00 for 2,400 tablets. But on the evidence, the total street price of 2,400 tablets, if sold, would be in the range $96,000.00 to $240,000.00. 2. The HCCC wrote to the respondent's legal representatives on 19 January 2015. In that letter he was invited to make submissions under Section 40 of the National Law in relation to the proposed complaints against him. His solicitors' response to the proposed complaints commenced with the statement "Dr Azizi denies that he has done anything wrong or been involved in any kind of wrong-doing". 3. When the respondent was asked in cross examination what was meant by "wrong-doing", he was not responsive. But then when the question was repeated, he said that it was to do with allegations of him selling drugs. But the HCCC letter made no reference to selling drugs or of a "drug racket". 4. When that was put to the respondent, his answer was not responsive. When the question was repeated, he conceded there was no such reference in the HCCC letter. He subsequently also conceded that it was wrong to say that he had "done nothing wrong and had not been involved in any wrong-doing". 5. He conceded that the representatives of the PSU informed him that an 80 mg OxyContin tablet sells "on the street" for $40 - $100. It was put to him that on his evidence he used about 400 tablets and not the remaining 2,400 odd. He did not dispute that. When It was put to him that he could have received about $28,000 if he had sold the tablets he obtained but did not use, He denied having sold any of them. (But 2,400 tablets at $40.00 each would be $96,000.00 and at $100.00 would be $240,000.) 6. In re-examination he denied selling any OxyContin tablets and he denied giving any to anyone else. He said that he never made any money from drug sales. He said that he had a $60,000 debt; $30,000 on credit card and $30,000 on a personal loan. 7. He sought to have the tribunal accept that despite his addiction and the cost of having the prescriptions dispensed, he discarded about 80% of the tablets he obtained. 8. There was some evidence that suggested his addiction was less serious than he contended. He left Ryde Hospital against medical advice and avoided having a drug and alcohol assessment that was to occur the next morning. He ceased his methadone programme after only 11 days. He rejected Dr Ballin's advice to undertake a buprenorphine programme. He didn't go back to Dr Ballin for 9 months. He says he had a short period when he says he suffered withdrawal. In December 2013 Dr Ballin and Dr Malik both recommended he undertake the Phoenix Programme, but he did not contact the programme. He first saw Dr Malik in December 2013. He did not see him again until September 2014. Dr Fisher advised him in November 2015 to attend Doctors in Recovery meetings, but it appears that the Respondent did not commence attend the meetings till February 2016, the month before the hearing of these proceedings. He has, however, undertaken urinalysis 3 times per week since April 2015. 9. On 31 March 2014 the respondent went to the Blacktown Police Station and gave a formal statement to the police complaining of assault by Mr Ebadi. He said in that statement that he had met Mr Ebadi in April or June 2013 when Mr Ebadi was a patient at the Mt Druitt Hospital and the respondent was treating him. He said "As part of his treatment I did an X-Ray but Adam said his doctor was away and he requested Oxycodone (sic). I wrote him a script and he left the hospital". 10. They subsequently became friends and visited each other at their homes. He had dinner several times at Mr Ebadi's home with Mr Ebadi's family. 11. He alleged that "at the end of November or early December 2013" Mr Ebadi told him that his eldest son was getting married and that Mr Ebadi had no money to pay for the wedding. Ebadi said his wife didn't know of his poor financial circumstances and he wanted to borrow $20,000 to pay for the wedding. He said that he could repay it "in a few weeks, even before Christmas". 12. The respondent alleged he agreed to lend Ebadi $20,000.00. 13. The respondent said he went twice to the Commonwealth Bank at Rhodes and withdrew $10,000 on each occasion. He said that Mr Ebadi was with him when he withdrew each amount, and he handed the money to him. The statement alleges that he subsequently in January 2014 and March 2014 made requests of Mr Ebadi to repay the money, but Mr Ebadi said he didn't have the money, but he would get it. 14. In the week commencing 23 March 2014 he telephoned Mr Ebadi and they agreed the applicant would go round to Mr Ebadi's home so they could talk. 15. The respondent alleges that he went to the home of Mr Ebadi on Sunday 30 March 2014 at about 9:00pm. He was driven by a friend. When they arrived outside the home, the respondent telephoned Mr Ebadi and he said that "he would be there in 15 minutes". About 15 minutes later he arrived and after some small conversation the respondent asked Mr Ebadi about repayment of the $20,000. He told Mr Ebadi that he had financial problems. 16. The Respondent alleges Mr Ebadi refused to acknowledge that the loan existed. The respondent alleged Mr Ebadi then said "my wife and kids are upstairs and I don't want them to find out. Let's get in the car and go somewhere else". 17. The respondent alleges that he told his friend to leave and he and Mr Ebadi drove off in Mr Ebadi's car. 18. The respondent alleges Mr Ebadi told him during a conversation in the car that he was not in a position to repay the loan and became "angry and upset". He parked the car in a parking area and they continued talking about the money. The respondent alleges "I started to realise that the money was gone and I would never see it again. I started telling Adam that he could pay it back in smaller lots, but he kept saying that he didn't have any money to give me. The conversation went on for 5 or 10 minutes. It became clear to me that Adam was not going to give me any money so I said to him, 'that's fine, I will tell your wife then'. I opened the car door and I got out". 1. He alleges that he then walked towards the main road so that he could get a taxi to go home, but Mr Ebadi approached him, picked up a tree branch and hit him on the back area repeatedly with the branch. The respondent alleges he was "yelling at him to stop but he wouldn't". He also alleges that Mr Ebadi took off his belt and whipped the respondent to the back while the respondent was cowering and "begging him to stop as it hurt so much". 2. Then he alleges that Mr Ebadi struck him 5 of 6 times to the side of his face with "something shiny and silver in his right hand". The respondent alleges he became very dizzy and after being struck 5 to 6 times he fell to the ground. He alleges "I don't know if I blacked out, but the next thing I remember is that I was on the ground and that Adam had left. I used my mobile phone to call my friend ……..". His friend and another man arrived in a car and they collected the respondent and took him to Blacktown Police Station. 3. While he was waiting to be interviewed by police he alleges he continued "to feel dizzy and nausea. This pain continued so an ambulance was called and I was taken to Westmead Hospital". 4. It is important to consider some events impacting on the respondent's financial situation and security prior to his alleged agreement at end of November 2013 or early December 2013 to lend $20,000.00. The respondent was contacted by PSU in September 2013 and questioned about some of the subject OxyContin prescriptions. There had been a performance assessment meeting with his departmental head about what appeared to be forged prescriptions and also his arrival at work in September looking "rough", "dishevelled" and "dressed inappropriately". He had taken leave on 31 October 2013 to study for the examination on 22 November. He had suffered the overdose and hospital admission on 12 November 2013. He had revealed to his Department Head on 13 November that his problem was an addiction to OxyContin. He had self-notified to the Medical Council on 14 November. On 19 November the Medical Council had convened section 150 proceedings and notified the respondent. 5. The respondent was well aware in late November 2013 that his employment and his registration as a medical practitioner were seriously at risk because of his addiction and his conduct. It would seem that that was a factor that would have in his mind weighed heavily against him lending $10,000.00 or $20,000.00 to Mr Ebadi in late November or early December 2013. 6. The respondent did not rely on any record of his, or of his bank, of any withdrawal of $10,000.00. 7. He relied upon Exhibit R2. One page of that is a credit card statement. And shows that as at 6 January 2014 he owed $28,825.47 on a credit card with a credit limit of $28,500.00. That document also shows that his credit card debt was already $28,919.61 at 6 December 2013, the start of the period covered by the statement, the debits to the account in that period totalled only $2,105.86 for the month to 6 January and payments/refunds totalled $2,200.00. That document does not corroborate any alleged withdrawal of $10,000.00. It is evidence that there was no such withdrawal from the credit card in the month. 8. Also a part of Exhibit A2 is pages of a loan application by the respondent to the Commonwealth Bank. It is dated 3 December 2013 and seeks a loan of $30,000.00 for the purchase of a new car. That application was before the alleged request by Mr Ebadi for a loan of $20,000.00 alleged to have occurred in late December or early January. It shows that at 3 December he already had the credit card debt (then $28,500.00) and an overdraft debt of $1,906.00. He had an existing motor vehicle worth $70,000.00 and other unspecified property worth $30,000.00. It appears from the documents that if the loan was granted, he wanted the loan amount paid to his overdraft account at the Bank's branch at Queen St Brisbane. It disclosed no other account with the Commonwealth Bank or any other bank. 9. The exhibit does not disclose whether the loan application was granted. The exhibit therefore provides no corroboration of any withdrawal of $10,000.00 from the Commonwealth Bank between 3 December 2013 and 6 January 2014. 10. Police interviewed Mr Ebadi at the Blacktown Police Station on 14 April 2014 about the complaint to them by the respondent. The record of interview is in evidence. 11. Mr Ebadi alleged that, after some considerable preliminary conversation, the respondent told him when he came to the Ebadi home "I lost my life and that's what's happening and I've got no money to do this. I've got no money to do that. I've got no money to pay rent. I've got no money to eat". 12. He said that the respondent then asked him for money and he explained to the respondent that he was in receipt of an unemployment benefit and his wife was a pensioner, and they had no money they could give him. He said that the respondent then started shouting at him and he told the respondent "Listen, I've got neighbours, my wife upstairs, and, you know it's not right you raise the voice". He said that the respondent then went to the car where his friend was and the friend drove away. Then he said that his family were watching because the respondent was shouting at him. He said that he reassured his family, in particular his son by telling them he was alright and "'we're just talking' and things like that". 13. He said he then realised that the respondent had gone. He said that one of his sons walked to the end of the street to look for the respondent. He and his other son and his wife stood in the front driveway. Then he said that when his son returned, he and his family were going back inside their home, then in the driveway a vehicle arrived and parked in the driveway. A man shouted out "Adam Ebadi?" loudly. Another man was in the car and started to use the telephone to record the conversation. He and his wife were asking the men who they were and the eldest son went inside and telephoned the police. He heard one of the men saying "he called the police. We should go. We should go". 14. Mr Ebadi's wife said to the men "stop here. The police are coming. Whatever you want to say. Stop, the police are coming". But the 2 men got into the car and left. Mr Ebadi's son recorded the car make and registration number. 15. Mr Ebadi alleged that that night the respondent was different to how he has seen him any other time and "crazy" and he said to the police, "I've told you before. But the junky doctor is different from the other doctor". And "he is a junky doctor. Why I'm saying that, because that night he was on drug". And "the personality that I saw of him was different than what I saw that night". 16. He told the police that the respondent had informed him that he had lost his job for "using the illegal prescription drugs". He said that he had come to the police station about that 2 or 3 months ago, and had spoken with the police about some prescriptions that had been written with his name on them. 17. The police put to Mr Ebadi matters from the statement the respondent had given to police. Mr Ebadi denied that they met at the hospital. He said that they met through a mutual friend. He denied that he went to the hospital with a back problem. He said that he had appendix pain. 18. He denied that he requested a prescription and said that the respondent gave him a prescription of the painkiller. He agreed that he later returned to the hospital about 1 month later with appendix problems. 19. He denied that he asked the respondent for $20,000. He said that his son was working in Mount Isa and did not need money. His son and his son's partner had been together for almost 9 years, but they are not engaged, although they have talked about getting married. He said that if they were to get married, they would have a small function in Australia and have the marriage celebration in Iran, but no decision had been made yet – no date had been set for the wedding. He denied that he asked the respondent for $20,000 or ever borrowed any money from him. He denied the respondent had ever borrowed any money from him. 20. Mr Ebadi agreed that he did go to the bank with the respondent when he withdrew money, but the money then went to family members of the respondent, including the respondent's mother. 21. The respondent said that Mr Ebadi did not see the money on those occasions because the respondent went inside the bank and sought a teller to implement the transaction. Mr Ebadi said that he was inside the bank too, but he did not go to the teller with the respondent. 22. Mr Ebadi denied that the respondent ever telephoned him about repaying money. 23. Mr Ebadi said that later they walked to the main road and the Dan Murphy's car park and were standing there talking. He denied that the respondent got into Mr Ebadi's car. Mr Ebadi denies that he has a mortgage. He said that the house he lives in is his son's house. He said of the respondent, "he knows I've been bankrupt bloody 4 years ago". And "he knows the bank took my house. He knows that I couldn't find any job because I'm a bankrupt". 24. He denied the conversation alleged by the respondent to have occurred at the car park. 25. Mr Ebadi denied that anything happened with a tree branch. He denied hitting the respondent with a belt. He denied that he ever had any "shiny thing and hit the respondent to the left side of his face". 26. He denied touching the respondent. "My touch was just kiss him, hug him and welcome him to my place. That's the touch was – which is I made this guy" and "no touch at all". 27. He denied that the conversation became physical. He said all of the "argument" and "yelling" was by the respondent. He said that a man came in a white Corolla from outside Mr Ebadi's house. 28. Mr Ebadi said that the respondent "like I said, he was high. He was somewhere else. He is the guy which is trying to make trouble. My wife told me – which is actually I call again my wife. My wife said 'Adam, they had a plan to do this. This is why they come to our place'". 29. He said that as he and the respondent walked back to the front of his house, the respondent made a call on his mobile phone when they were outside the front of his house, a Camry motor vehicle "comes fast to my house. They found out we call police, even they jump over the bloody kerb. They went top of the kerb. That's why I said 'run away'. And my wife was there – she jump up. They picked [the respondent] up here. From here to here very easy". When asked about calling the respondent "the junky doctor" he said "like I said, that night he [the respondent] wasn't the way which is - before I saw the last case he using the medicine which is make him high, and the night which is he went to the right hospital for overdose and this kind of thing. And that night which is – that evil face in front of my house, that's why. Actually it make me angry to say that. I shouldn't say that. But that time he [the respondent] wasn't. He was on drugs – something make him burn, evil face come out. That's why I said that actually". 30. Mr Ebadi said that the respondent had not contacted him since that night. 31. In that police interview, Mr Ebadi identified his signature on several of the prescriptions written by the respondent and nominating Mr Ebadi as the patient. The signature indicated that he had collected the relevant tablets. There was no evidence on the question of whether Mr Ebadi handed all or any of the tablets in those prescriptions to the respondent. 32. The respondent's credit is extremely poor and his evidence of loan(s) to Mr Ebadi is not corroborated and is contradicted by Mr Ebadi. The Tribunal does not accept his evidence that he lent money to Mr Ebadi. 33. The Tribunal does not believe the explanation of the respondent as to what happened to the tablets that he did not use for himself. But the evidence falls short of establishing that he sold those tablets or any of them. Unsatisfactory Professional Conduct and Professional Misconduct. 1. Section 139B of the National Law defines unsatisfactory professional conduct as follows: 1. "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- 1. 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. 2. 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. 3. A contravention by the practitioner (whether by act or omission) of- 1. a condition to which the practitioner's registration is subject; or 2. an undertaking given to a National Board. 1. A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. 2. A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993 . 3. Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for- 1. referring another person to the health service provider; or 2. recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. 1. Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. 2. Offering or giving a person a benefit as inducement, consideration or reward for the person- 1. referring another person to the registered health practitioner; or 2. recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. 1. Referring a person to, or recommending that a person use or consult- 1. another health service provider; or 2. a health service; or 3. a health product; if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. 1. Engaging in over-servicing. 2. Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. 3. Any other improper or unethical conduct relating to the practise or purported practise of the practitioner's profession. 1. For the purposes of subsection (1)(i), a registered health practitioner has a "pecuniary interest" in giving a referral or recommendation- 1. if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or 2. if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or 3. if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or 4. in any circumstances prescribed by the NSW regulations. 1. For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class. 2. In this section- "benefit" means money, property or anything else of value. "recommend" a health product includes supply or prescribe the health product. "supply" includes sell. 1. Section 139E of the National Law defines professional misconduct as follows: 1. For the purposes of this Law, "professional misconduct" of a registered health practitioner means- 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. Other relevant law 1. This is a hearing under Subdivision 6 of Division 3 of Part 8 of the National Law. Section 3A provides that in exercising its functions the Tribunal must treat "the protection of the health and safety of the public" as the paramount consideration. The focus of these proceedings is not punishment of the respondent. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637). 2. Disciplinary proceedings against members of a profession are intended to maintain proper and ethical professional standards, primarily for the protection of the public, but also for the protection of the profession (Health Care Complaints Commission –v- Litchfield [1997] 41 NSWLR 630 at [637]). 3. The public interest served by protective orders include the indirect effects such as the standing of the profession and maintenance of public confidence in the profession (Prakash –v- Health Care Complaints Commission [2006] NSWCA 153 at [91]). 4. Protective orders can also involve an element of deterrence in the sense of encouragement to other practitioners to recognise the importance of compliance with professional standards and the risks of failure to do so (Prakash –v- Health Care Complaints Commission [2006] NSWCA 153 at [91]). 5. The specific purpose for which the Tribunal makes orders is protective of the public interest rather than punitive with respect to the practitioner. But protective orders can also be punitive in their effects on the practitioner (Lee –v- Health Care Complaints Commission [2012] NSWCA 80 at [20]). An example would be where a condition is imposed requiring supervision and the practitioner has to pay the cost of the supervision. 6. It has also been held that in addition to the protection of the public, other relevant purposes of such proceedings under the National Law include the need to maintain the standards of the relevant profession, to deter the practitioner from further such conduct, to deter others from engaging in like conduct and to maintain public confidence in the profession. (e.g. Lee –v- Health Care Complaints Commission [2012] NSWCA 80; Basten JA in NSW Bar Association v Meaks [2006] NSWCA 340 at [114] listed other important but indirect effects of the other disciplinary order which should be considered when determining an appropriate protective order. They were: 1. Reminding other members of the profession of the public interest in the maintenance of the high professional standards; 2. Emphasising to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. Maintaining high standards of the profession with the public being aware of the order. 1. Numerous decisions have recognised other considerations beyond direct protection of the public ( e.g. Skinner v Beaumont (1974) 2 NSWLR 106 f109; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B; Seville v HCCC [2006] NSWCA 298 at [45]; Lee v HCCC [2012] NSWCA 80, at [20] – [21]; Re Dr Parajuli [2010] NSWMT 3 [32]; HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175]; HCCC v King [2013] NSWMT 9 at [27]). 2. In Prakash v HCCC [2006] NSWCA 153, the Court of Appeal held (at [74]) "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed. It is even more serious when dishonesty supervenes ….." 1. Similarly, in HCCC v McHue (NSW Medical Tribunal. 14 December 2007), The Medical Tribunal held at [45] "Concern for the protection of the public includes consideration of the need to ensure that practitioners whose practice of medicine has been constrained by conditions, comply with those conditions, they are honest with the panel, expert assessors and others whose task it is to make assessment of the practitioner's compliance. The conditions and the monitoring are imposed in order to ensure that the public are protected whilst allowing practitioners whose conduct has come to scrutiny to continue in practise. Without honest dealing by such practitioner, the entire system developed to benefit both public and practitioner will be imperilled. Practitioners whose conduct of medicine is called into question must appreciate that this Tribunal may treat dishonest statements and explanations to the Board, to Panel and to experts appointed to the Board and this Tribunal as justifying suspension or deregistration even when where the original conduct may well not have, of itself, led to such a result." 1. Subdivision 6 of Division 1 of Part 8 of the National Law describes the powers that may be exercised by the Tribunal where a practitioner has been found to have engaged in professional misconduct. They include under s.149A: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. Under ss.149B there is also a power to impose a fine on a registered health practitioner of not more than 250 penalty units where the Tribunal has found the registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct and the Tribunal is satisfied there is no other order or combination of orders that is appropriate in the public interest. 2. Section 149C gives the Tribunal power to suspend or cancel the registration of the practitioner where: (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. 1. Before a medical practitioner is deregistered, the Tribunal needs to find that the practitioner is probably permanently unfit to practice (Ex parte Lenehan (1948) 77CLR 403 at 424-425 (per Latham CJ, Dixon and Williams JJ – Rich and Starke JJ dissenting). Conclusions 1. Complaints 1, and 2, have been established. They each involve serious instances of unsatisfactory professional conduct, breaches of the law and serious dishonesty. Together they constitute professional misconduct so serious as to justify cancellation of his registration. 2. The Tribunal has concluded that the respondent, given his addiction and his lack of integrity, poses a risk to the public if he is able to prescribe drugs of addiction or work where there are drugs of addiction, by using them or by dealing with them contrary to the law. He does not demonstrate a level of integrity that justifies him being trusted to comply with the relevant laws or conditions of his registration designed to protect the public. 3. The Tribunal is concerned that the outcome of the proceedings should deter the respondent and other practitioners from conduct such as the conduct the subject of complaints 1, and 2, that it recognize and maintain the high public standards of the profession and the confidence of the public in the profession, and that it reinforce the reputation of the profession for integrity and remind its members of that. 4. The public interest requires that the respondent's registration be cancelled and he not be permitted to reapply for a period of 3 years. Costs 1. The HCCC seeks an order that the respondent pay its costs of the proceedings. The respondent seeks there be no order as to costs. 2. Clause 13 of Schedule 5D of the National Law applies, rather than section 60 of the Civil and Administrative Tribunal Act 2013 (see subclause 13 (4)). The power to award costs in Clause 13 is a general power and that requires that generally costs follow the event (HCCC v Dinnaker [209] NSWMT 8; Ohn v Walton (1995) 36 NSWLR 77). 3. The Applicant has succeeded on all 4 complaints and in having a cancellation imposed and unless there are other circumstances that justify departure from the general rule, the respondent should pay the applicant's costs. There are no such circumstances. 4. Indeed, the extensive false evidence given by the respondent in the proceedings and untenable positions he adopted in his replies have unnecessarily made the proceedings more complicated, extended the length of the hearing and unnecessarily increased the costs of both parties. That reinforces the application of the general rule that the unsuccessful party should pay the costs of the successful party. . ORDERS 1. Accordingly the orders of the Tribunal are: 1. The registration of the respondent as a medical practitioner is cancelled pursuant to the provisions of section 149C of the National Law 2. Pursuant to section 149C(7) of the National Law a period of 3 years is fixed before the respondent may apply for a review 3. The respondent must pay the costs of the applicant of or incidental to these proceedings as agreed or as assessed under the legal costs legislation. 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: 20 July 2016