Health Care Complaints Commission v Bester [2016] NSWCATOD 140
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Bester [2016] NSWCATOD 140
Hearing dates: 1, 2 and 3 August 2016
Date of orders: 03 August 2016
Decision date: 03 August 2016
Jurisdiction: Occupational Division
Before: Mullane ADCJ, Principal Member
Dr L Cotterall, Professional Member
Dr P Anderson, Professional Member
Assoc Prof P Macneill, General Member
Decision: 1. The Practitioner is guilty of professional misconduct;
2. Pursuant to s149C(1)(b) of the National Law the practitioner's medical registration is suspended for 6 months from 23 August 2016;
3. The Medical Council is the appropriate review body for the purposes of part 8, Division 8 of the Health Practitioner Regulation National Law (NSW);
4. Sections 125 to 127 of the Health Practitioner National Law (NSW) are to apply should the registrant's principal place of practice be anywhere in Australia other than in the New South Wales so that the appropriate review body in these circumstances is the Medical National Board;
5. Pursuant to s149A(1)(b) the following conditions are imposed on the practitioner's registration:
Practice Conditions
(1) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW);
(2) To obtain Council approval prior to changing the nature or place of his practice;
(3) To practice only in a group practice approved by the medial council of NSW where there are at least 3 registered medical practitioners, (including the subject practitioner), where there is always at least one other registered medical practitioner on site when he is there. For the purpose of monitoring this condition the practitioner is to provide the council with copies of the practice appointment book on any dates specified by the Council to confirm compliance with this condition;
(4) To authorise the Council to notify all medical practitioners at the practitioner's place of practice of his practice conditions and any issues arising in relation to compliance with any of his conditions, and to request those practitioners to raise with the Council any concerns they have about the practitioner or his practice;
(5) To notify the Council of any change in practice partners/associates within seven (7) days of a practice partner/associate either leaving the practice or commencing work at the practice; and
(6) To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions.
Health Conditions
(1) Not to prescribe for self-medication;
(2) To attend for treatment by a general practitioner of his choice, at a minimum of an annual basis, and at other times at a frequency to be determined by the practitioner and the treating practitioner. To notify the Council, in writing the name of the treating practitioner within 2 weeks of changing treating practitioners, should his treating practitioner change. To authorise the treating practitioner to confirm attendance in writing to the Council and to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including 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 the treating psychiatrist to inform the council 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) To attend for treatment by a clinician of his choice specialising in drug & alcohol (different from the primary treating psychiatrist in Health Condition 3) at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change);
(5) To continue taking any medication prescribed by his treating practitioners;
(6) That the extent of his professional duties is to be guided by his health status and the advice of his treating, and any Council appointed, practitioners;
(7) Not to self administer:
a. any schedule 4D or 8 Drug; or
b. any narcotic derivative; or
c. any non-prescription compound analgesic or cold medication.
Such medication must only be prescribed and taken at the direction of his treating practitioner;
(8) That should he be prescribed or directed to take:
a. any schedule 4D or 8 Drug; or
b. any narcotic derivative; or
c. any non-prescription compound analgesic or cold medication,
the practitioner must notify any Council appointed psychiatrist and the Council. In addition within 7 days he must provide the Council with written confirmation of such treatment from the treating practitioner;
(9) To attend for Random Urine Testing (UDT) in strict accordance with Council's protocol. Results of Urine Drug Testing to be forwarded to any Council appointed and treating practitioners and to the Council. He understands that such UDT will be at his expense;
(10) To abstain completely from the consumption of Alcohol;
(11) To attend for review by a Council appointed psychiatrist on a six (6) monthly basis or as otherwise directed by the Council, at the Council's expense;
(12) To attend a Review Interview at the Council in 6 months or as otherwise directed by the Council, at the Council's expense;
(13) To authorise the Council to forward copies of the Impaired Registrant's Panel Report, subsequent Council Review Interview reports and other information relevant to his impairment to any Council appointed practitioners and his treating practitioners; and
(14) To forward to the medical Council of NSW every three months a record of his attendance for treatment by his treating practitioners. The record must include:
a. The date of each attendance for treatment; and
b. The name of the treating practitioner; and
c. The contemporaneous signature of the treating practitioner.
6. Practice Condition 1 and Health Conditions 1 and 7 are critical compliance conditions, the contravention of which will result in the practitioner's registration being cancelled;
7. The applicant must provide the Royal Australian College of General Practitioners with a copy of these orders;
8. The practitioner must pay the costs of the applicant of or incidental to these proceedings as agreed or as assessed; and
9. Publication of the name of any patient referred to in the proceedings, or other information that identifies the patient, is prohibited.
Catchwords: Disciplinary proceedings, Medical practitioner, prolific breaches of legislation and conditions of registration, dishonesty, professional misconduct, impairments, drug addiction and Bipolar II Disorder, Suspension.
Legislation Cited: Health Profession Regulation National Law (NSW); Health Practitioner Regulation (NSW) Regulation 2010; Poisons and Therapeutic Goods Regulation 2008;
Poisons & Therapeutic Goods Act 1966 (NSW)
Cases Cited: HCCC v Dinnaker [2009] NSWMT 8:
Ohn v Walton (1995) 36NSWLR 77;
HCCC v Dr Mazzaferro [2011] NSWMT 9
Category: Principal judgment
Parties: Health Care Complaints Commission (HCCC) (Applicant)
Dr Johannes Cornelis Bester (Respondent)
Representation: Counsel:
A Britt (Applicant)
M Lynch (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Unsworth Legal (Respondent)
File Number(s): 1620009
Publication restriction: Publication of the name of any patient referred to in the proceedings or other information that identifies the patient is prohibited
REASONS FOR DECISION
Introduction
1. These are disciplinary proceedings commenced by the Health Care Complaints Commission against the respondent medical practitioner by an application filed 8 January 2016.
2. An amended application was subsequently filed after the practitioner filed his statement of 7 July 2016.
3. The complaints relate to his use of the drug Pethidine, forging prescriptions in the name of other doctors, obtaining Pethidine by having patients have the prescriptions dispensed, retaining some of the dispensed Pethidine for his own use and extensive breaches of conditions imposed on his registration.
4. It is also alleged that the practitioner forged other records and contravened requirements of the Health Practitioner Regulation National Law (NSW) ("The National Law") and other laws.
5. In his statement 6 months after the proceedings commenced, and at the hearing, the practitioner admitted most of the complaints made against him.
The Evidence
1. Pursuant to a direction at the Case Conference the applicant, after becoming aware of the admissions in the practitioner's statement of 7 July 2016, filed a list of the documents in the material it had filed that it no longer relied upon. That reduced the evidence in the applicant's case by about a half.
2. There was an agreed chronology filed at the hearing pursuant to a direction at the Case Conference. The other evidence comprised:
(a) Application and Amended Complaint dated 8 January 2016
(b) Registration Certificates from AHPRA and Medical Council of NSW
(c) Complaint by Pharmaceutical Services Unit 13/6/14 attaching (d), (e), (f), & (g)".
(d) Report by A/Principal Pharmaceutical Officer 11/6/14 (at page 3)
(e) Email A Sydenham providing screen shots x3 (at page 34)
(f) Patient details and consult notes for 9 patients (at page 43)
(g) Patient records of Patient I (at page 95)
(h) Reasons for Decision report dated 25/3/14 (Suspending registration) following s150 Proceedings on 23/1/14
(i) Transcript of s150 proceedings 25/3/14.
(j) Dr Beckwith statement 13/12/14 plus Annexures A to F;
(a) Annexure A – Notification 31/3/14 (Patient A) (at page 7)
(b) Annexure B – Letter 17/7/14 (Patient A) (at page 8)
(c) Annexure C – Second notification 10/11/14 (Patient K) (at page 26)
(d) Annexure D – Practitioner A patient billing Nov 2013 (at page 27)
(e) Annexure E – Practitioner B patient billing 4/11/13, 15/11/13 (at page 31)
(f) Annexure F – Respondent patient billing Nov 2013 (at page 33)
(k) Dr Bramston's statement 4/2/15 plus Annexures A-J
(l) Annexure A Extract from Dangerous Drugs Register (Reliance) (at page 7)
(m) Annexure B Patient A records (at page 21)
(n) Annexure C Patient B records (at page 32)
(o) Annexure D Patient C records (at page 48)
(p) Annexure E Patient D records (at page 53)
(q) Annexure F Patient E records (at page 62)
(r) Annexure G Patient F records (at page 72)
(s) Annexure H Patient G records (at page 83)
(t) Annexure I Patient I records (at page 99)
(u) Annexure J Patient H records (at page 119)
(v) Practitioner A's statement 28/11/14 plus Annexures A – E
(w) Annexure A Patient A consult notes 19/11/13 x 2; 19/12/13 (at page 5)
(x) Annexure B Patient A dispensed script for Pethidine 19/11/13 (at page 7)
(y) Annexure C Five scripts for Pethidine (Patients B, K, D, E, F) (at page 6)
(z) Annexure D Patient J consult notes and script for Pethidine (at page 13)
(aa) Annexure E Patient I consult notes and script for Pethidine (at page 16)
(bb) Unsworth email 18/8/14 attaching practitioner's response to all 3 complaints 15/8/14
(cc) Email 16/1/15 attaching:
(a) Practitioner's further response 16/1/15
(b) Practitioner's CV
(dd) Practitioner's section 40 response 31/3/15
(ee) Dr Jonathan Phillips 23/3/15 report for Commission
(ff) Dr Phillip's letter to Council providing:
(a) practitioner's email of 27/7/14 re identify of his wife (at page 2)
(gg) Dr Phillip's report for Council 22/7/14
(hh) Dr Michael Diamond report 20/1/14
(ii) Dr Anthony Sams report 18/11/14
(jj) Dr Anthony Sams report 8/7/14
(kk) Dr Rod Morice 29/7/14 verifying attendance
(ll) Dr Morice 26/3/14 reporting on initial attendance
(mm) Dr Anthony Sams 10/12/13 confirming provision of Seroquel on 29/10/13
(nn) Dr Anthony Sams report 29/10/13
(oo) Dr Michael diamond report 2/11/11
(pp) Dr Ben Anderson report 4/7/14 for Council
(qq) Council to practitioner 12/7/13 re test results attaching:
(a) Test result 3/7/13 (insufficient urine) (at page 2)
(b) Test result 5/7/13 positive for Tramadol (at page 3)
(rr) Practitioner's response 21/7/13
(ss) Unsworth letter 15/8/14 seeking lifting of suspension
(tt) Council to Dr Bester 19/11/13 providing test result attaching:
(a) Urine collected 6/11/13 positive for Pethidine (at page 2)
(uu) Toxicology Results:
(a) Palms: 7/11/13 (Pethidine detected) (at page 1)
(b) Palms: 12/11/13 (Pethidine detected) (at page 2)
(c) SSWPS: 13/11/13 (positive urine test) (at page 3)
(d) Palms: 14/11/13 Not assayed (at page 4)
(e) Palms: 14/11/13 (Pethidine detected) (at page 5)
(f) Palms: 19/11/13 (Pethidine detected) (at page 6)
(g) Palms: 25/11/13 (Pethidine detected) (at page 7)
(h) Palms: 28/11/13 (Pethidine detected) (at page 8)
(i) Palms: 2/12/13 (Pethidine detected) (at page 9)
(j) Palms: 3/12/13 (nil drugs detected) (at page 10)
(k) Palms: 5/12/13 (nil drugs detected) (at page 11)
(l) Palms: 9/12/13 (nil drugs detected) (at page 12)
(m) Palms: 10/12/13 (nil drugs detected) (at page 13)
(n) Palms: 12/12/13 (nil drugs detected) (at page 14)
(o) Palms: 16/12/13 (nil drugs detected) (at page 15)
(p) Palms: 17/12/13 (nil drugs detected) (at page 16)
(q) Palms: 19/12/13 (nil drugs detected) (at page 17)
(r) SSWPS: 19/12/13 (dilute urine) (at page 18)
(s) Palms: 24/12/13, collected 20/12/13 (nil drugs detected) (at page 19)
(vv) Council 28/11/13 re urine result for alcohol:
(a) EtG taken for 13/11/13, reported 14/11/13 (at page 2)
(ww) Council 3/12/13 re EtG elevated:
(a) 13/11/13 Results elevated 4.5 (at page 2)
(xx) Dr Bester 5/12/13 EtG urine test detected. Dr Bester attributed test result on 13/11/13 to Christmas cake.
(yy) Pathologist Peter Bowron 20/1/14 confirmed positive test results
(zz) A Davey email 21/2/14 providing Dr Bester's admission to Pethidine use in November 2013
(aaa) Expert report 5/2/15 attaching documents cited in report:
(a) 'Summary of Controls on the Prescribing and Handling of Drugs of Dependence by Medical, Nurse and Midwife Practitioners'. NSW Health Issue date Feb 2014 TG135/11 (at page 56)
(b) 'PBS Stationery Education' Medicare. Updated 5 Sept 2012 (at page 60)
(c) 'The Role of Drugs in Road Safety' Australian Prescriber 2008 (at page 62)
(d) 'Does Pethidine Still Have a Place in Therapy?' Australian Prescriber Vol 25" No. 1, 2002 (at page 66)
(e) 'Criteria for Issuing Non-handwritten (Computer Generated) Prescriptions, NSW Ministry of Health Pharmaceutical Services Jan 2012 (at page 68)
(f) Guidelines for the Management of Patients with Chronic Non-cancer Pain' NSW Health Pharmaceutical Services Branch, Jun 2006 TG202/7 (at page 75)
(bbb) Patient G:
(a) Reliance Wyoming consult records:
(i) 8/10/13 (at page 1)
(ii) 10/10/13 (at page 2)
(iii) 4/11/13 x 2 (Dr Bester / Dr Woolcck) (at pages 3 & 4)
(iv) 5/11/13 x 2 (at pages 5 & 6)
(v) 8/11/13 (at page 7)
(vi) 12/11/13 (at page 8)
(vii) 18/11/13 (at page 9)
(viii) 25/11/13 (at page 10)
(ix) 2/12/13 (at page 11)
(x) 4/12/13 (at page 12)
(xi) 3/2/14 (at page 13)
(xii) Reliance Wyoming practice records showing Pethidine prescribed on 4/1/13 (at page 14)
(ccc) Patient H
(a) Reliance Wyoming consult records:
(i) 12/6/13 Dr Bester (at page 1)
(ii) Copy of script for Pethidine 12/6/13 (at page 2)
(iii) Copy of consult records Dr Beckwith 01/07/11 and 16/10/12 (at pages 3 & 4)
(iv) Reliance Wyoming practice records (at pages 5 & 6)
(b) Statement for Commission by Patient H 17/12/14 (at page 7)
(ddd) Patient I
(a) Reliance Wyoming consult records:
(i) 30/10/13 (at page 1)
(ii) 7/11/13 (at page 2)
(iii) 19/11/13 (at page 3)
(iv) 22/11/13 (at page 4)
(v) 28/11/13 x 2 (at pages 5 & 6)
(vi) 5/12/13 x 2 (at pages 7 & 8)
(vii) 19/12/13 x 2 (at pages 9 & 10)
(viii) 16/1/14 x 2 (at pages 11 & 12)
(ix) 30/1/14 (at page 13)
(x) 13/2/14 x 2 (at pages 14 & 15)
(xi) 27/2/14 x (at pages 16 & 17)
(xii) Reliance Wyoming practice records (at page 17)
(xiii) Copy of script for Pethidine 7/11/13 (at page 19)
(eee) Patient J
(a) Reliance Wyoming practice records
(i) 2/10/13 (at page 1)
(ii) 19/11/13 x 2 (at pages 2 & 3)
(iii) 27/11/13 (at page 4)
(iv) Reliance Wyoming practice records (at pages 5 & 6)
(v) Copy of script for Pethidine 19/11/13 (at page 3)
(vi) Statement for Commission by Patient J 30/10/14 (at page 4)
(fff) Letter from Unsworth Legal on behalf of Dr Bester of 9/6/15
(ggg) Submissions under S 40 from Unsworth Legal on behalf of Dr Bester dated 9/9/2015
(hhh) Report of Dr Johnathan Phillips, Consultant Psychiatrist, dated 25/3/15
(iii) Report of Dr Johnathan Phillips, Consultant Psychiatrist, dated 28/5/15
(jjj) Report of Dr Johnathan Phillips, Consultant Psychiatrist, dated 11/9/15
(kkk) Report of Dr Johnathan Phillips, Consultant Psychiatrist, dated 7/12/15
(lll) Report of Dr Johnathan Phillips, Consultant Psychiatrist, dated 31/5/16
(mmm) Letter by HCCC of 26/7/16 to Dr Johnathon Phillips
(nnn) Report of Dr Johnathan Phillips, Consultant Psychiatrist, dated 26/7/16
(ooo) Statement by the practitioner dated 7/7/16
(ppp) RACGP – QUICPD Credit Point Statement and various certificates
(qqq) CV of the practitioner
(rrr) Letter of 21/6/16 from Unsworth Legal Pty Limited to Dr Anthony Sams
(sss) Report of Dr Anthony Sams of 28/6/16
(ttt) Letter from Unsworth Legal Pty Limited to Dr Ben Anderson of 21/6/16
(uuu) Report of Dr Ben Anderson of 6/7/16
(vvv) Letter from Unsworth Legal Pty Limited to Dr Michael Diamond dated 21/6/16
(www) Report of 7/07/16 & CV of Dr Michael Diamond
(xxx) Exhibit A1 – list of documents in volumes 1 – 5 relied upon by the Health Care Complaints Commission
(yyy) Exhibit R2 – Health Care Complaints Commission tab 14 – pages 14 – 15
(zzz) Exhibit R2 – Certificate of Analysis by Cransford Laboratories dated 24/9/2014
(aaaa) Oral evidence and cross-examination of Dr Phillips on 1 August 2016; and
(bbbb) Oral evidence and cross-examination of the practitioner on 1 & 2 August 2016.
Chronology
1. The practitioner was born in Namibia in 1957. He graduated in medicine in 1981. He worked as an intern and later as a resident medical officer until 1985 when he commenced working as a medical practitioner at hospitals in the United Kingdom.
2. In 1987 he moved from the United Kingdom and took up employment as a medical officer at a hospital in Cape Town.
3. In 1988 he obtained a Diploma in Anaesthesiology from the College of Medicine at Cape Town.
4. The following year he established a medical centre in Cape Town and he worked there as a general practitioner until 1996, when he moved to New Zealand.
5. In New Zealand he worked at the Mercy Hospital at Palmerston North, as Chief Executive Officer and part time resident medical officer.
6. He graduated in an MBA course at the Massey University in New Zealand in that period.
7. The practitioner was granted conditional registration to practice in NSW on 17 August 2000. He worked for 1 year until 2001 as a general practitioner at Kariong Medical Centre near Gosford.
8. In 2001 he obtained his Fellowship of the Royal Australian College of General Practitioners ("RACGP").
9. He returned to New Zealand in 2001 and for the following 5 years was the Chief Executive Officer of the Mercy Hospital in Palmerston North.
10. In 2006 he came to Australia and for the next 3 years had the position of Director at the Dalcross Hospital in Sydney.
11. In 2009 – 2010 he provided administrative consulting services to both the Mercy Hospital in Palmerston North, and the Dalcross Hospital in Sydney.
12. He completed an Advanced Clinical Management Program for Adult and Paediatric Emergencies conducted by the RACGP in 2010.
13. In 2010 – 2011 he worked as a general practitioner at the Bay Village Medical Centre in Bateau Bay on the Central Coast.
14. The practitioner was diagnosed in late 2010 with bipolar disorder Type II and polysubstance abuse (Pethidine) by Dr Michael Diamond, Psychiatrist, and was referred to Dr Anthony Sams, Psychiatrist, for treatment of substance abuse.
15. On 4 February 2011 the Medical Council of NSW ("The Council") was notified by the Pharmaceutical Services Branch ("PSB") of suspected self-prescribing of Pethidine by the practitioner.
16. The practitioner attended upon Dr Johnathan Phillips, the Council appointed psychiatrist, for reviews from 1 March 2011.
17. There was a Section 150 enquiry conducted on 3 March 2011 and this resulted in the practitioner's authority to prescribe or handle Schedule 8 medications being withdrawn on 17 March.
18. A hearing of further Section 150 proceedings occurred on 16 May 2011. It was decided that the conditions on the practitioner's registration should remain unchanged and the practitioner was referred to the Council's Health Program.
19. On 4 August 2011 there was an Impaired Register's Panel Enquiry and the practitioner was again referred to the Council's Health Program.
20. On 15 September 2011 an allegation was raised that the practitioner had assaulted another doctor and the receptionist at the Bay Village Medical Centre, where he was working. The practitioner did not return to the practice after that.
21. From 20 September 2011, the registration conditions were amended to be:
Practice Conditions
(a) The practitioner is not to possess, prescribe, supply, dispense or administer any drug of addition (Schedule 8 drugs).
(b) The practitioner is to forthwith surrender to Pharmaceutical Services of the New South Wales Department of Health his authority to have possession of, prescribe, supply, dispense, administer or handle any drug of addiction (Schedule 8 drugs).
(c) To obtain Council approval and / or advise the council prior to changing the nature or place of his practice.
(d) To practise only in a group practice (group is defined as
at least 3 practitioners), with one other practitioner always on site unless with the approval of Council, save that the practitioner can do after hours on call work over the telephone without another practitioner present on the understanding that he does not have any face to face patient contact. Any patient who is deemed to need face to face medical attention should be referred to the hospital or to another doctor.
(e) To authorise the Council to notify his practice partners conditions and any issues arising in relation to compliance with any of his conditions.
(f) To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions.
Health Conditions
(1) 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 the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
(b) To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
(c) To attend for treatment by a psychiatrist specialising in Drug & Alcohol of his choice, at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant Change in health status (including a significant temporary change).
(d) To continue taking any medication prescribed by his treating practitioners.
(e) To attend for review by the Council Appointment Psychiatrist on a three monthly basis or as otherwise directed by the Council, at the Council's expense.
(f) Not to self-administer:
(a) any Schedule 4D or 8 Drug; and
(b) 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.
(g) That should he/she be prescribed or directed to take a:
(a) Schedule 4D Drug;
(b) narcotic derivative; and
(c) non-prescription compound analgesic or cold medication.
the practitioner must notify the Council Appointed Psychiatrist and the Council. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner
(h) To attend for thrice weekly Urine Drug Testing (UDT) in strict accordance with the Council'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 UDT will be at his expense.
(i) To have blood taken for measurement of Carbohydrate Transferrin (CDT) levels at monthly intervals in strict accordance with Council's protocol. The results of all tests are to be forwarded to the treating and Council Appointed practitioners and to the Council. He understands such testing will be at his expense.
(j) To authorise the Council to forward copies of the delegate's decision and any subsequent Council Review Interviews or other reports and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating practitioners.
(k) To attend a Review Interview at the Council in three months or as otherwise directed by the Council.
1. A further Section 150 hearing was conducted on 10 October 2011 and the decision was that his registration conditions remained unchanged.
2. A Council Review Interview occurred on 22 November 2011, and resulted in a recommendation that the practitioner remain involved with the Council's Health Program and that both his health and practice conditions remain unchanged.
3. The Health Committee Delegates on 13 December 2011 approved an application by the practitioner to practice at 3 locations on the Central Coast, including Reliance Medical Centre and Reliance Super Clinic in West Gosford.
4. In 2012 and 2013 the practitioner practised at the Reliance Medical Centre and the Reliance Super Clinic.
5. There was a Council Review Interview on 28 February 2012 and the registration conditions for the practitioner were continued. There was a further such interview on 17 May 2012 and again the conditions remained unchanged.
6. A further Council Review Interview was conducted on 16 August 2012 and it recommended that the review cycle be eased to 6 monthly, and the UDT testing be eased to random.
7. On 18 September 2012 the Health Committee determined that the practitioner be moved to a 6 monthly review cycle and continue thrice weekly UDT's. All other conditions remained unchanged.
8. The practitioner became the owner of Reliance Medical Centre, Wyoming, in 2013. It was renamed in 2015 as "5 Ways Medical Practice". The practitioner then worked in that practice.
9. There was a Council Review Interview on 28 February 2013 and it was recommended that condition 4 be eased to allow the practitioner to practice in a group practice with 1 other practitioner usually on site, and recommended the conditions otherwise remain unchanged.
10. The Health Committee endorsed the recommendation and practice condition 4 was amended.
11. There was a further Section 150 proceeding on 8 July 2013, and the practitioner was referred to an Impaired Registrant's Panel. The Impaired Registrant's Panel enquiry occurred on 11 October 2013 and it was decided to impose a condition upon the practitioner's registration for him to undergo random EtG testing and to return to a 3 monthly review cycle.
12. In November 2013, urine testing produced 7 positive results for Pethidine in the period 6 November to 29 November 2013 and 1 positive EtG result (alcohol) on 13 November 2013.
13. The 5th Section 150 proceedings took place on 23 January 2014, and as a result the practitioner's registration was suspended.
14. On 11 February 2014 the practitioner upon the recommendation of Dr Sams voluntarily admitted himself to the North Side Clinic at Greenwich for 2 weeks under the care of Dr Sams to address his substance abuse.
15. The practitioner commenced seeing Dr Rodney Morice, a Central Coast psychiatrist, on 26 March 2014 for management of his Bipolar Disorder. In September 2014 on the recommendation from Dr Michael Diamond the practitioner commenced taking lithium for management of his bipolar disorder.
16. A Section 150A proceeding occurred on 12 September 2014. Another Section 150A proceeding occurred on 12 December 2014, and as a result the suspension was lifted. Practice conditions and health conditions were imposed on the practitioner's registration from 15 December 2014 as follows:
Practice Conditions
(a) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).
(b) To obtain Council approval prior to changing the nature or place of his practice.
(c) To practice only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner) where there is one other registered medical practitioner usually on site.
(d) To authorise the council to notify his practice partners of his practice conditions and any issues arising in relation to compliance with any of his conditions.
(e) To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions.
Health Conditions
(a) Not to prescribe for self-medication.
(b) To attend for treatment by a general practitioner of his choice, at a minimum of an annual basis, and at other times at a frequency to be determined by the practitioner and the treating practitioner. To notify the Council, in writing the name of the treating practitioner within 2 weeks of changing treating practitioners, should his treating practitioner change. To authorise the treating practitioner to confirm attendance in writing to the Council and to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
(c) To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
(d) To attend for treatment by a clinician of his choice specializing in Drug & Alcohol (different from the primary treating psychiatrist in Health Condition 3), at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
(e) To continue taking any medication prescribed by his treating practitioners.
(f) That the extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council Appointed Practitioners.
(g) Not to self-administer:
(a) any Schedule 4D or 8 Drug; or
(b) any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication.
Such medications must only be prescribed and taken at the direction of his treating practitioner.
(h) That should he be prescribed or directed to take a:
(a) Any Schedule 4D or 8 Drug; or
(b) Any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication
the practitioner must notify the Council Appointed Psychiatrist and the Council. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner.
(i) To attend for thrice weekly Urine Drug Testing (UDT), including testing for zolpidem, in strict accordance with the Council'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 UDT will be at his expense.
(j) To abstain completely from the consumption of alcohol.
(k) To attend for random (Ethyl Glucuronide) (EtG) testing in strict accordance with the Medical Council of NSW protocol (a copy of which is included in the Participant's Handbook). Results of EtG testing are to be forwarded to the Council Appointed and treating practitioners and to the Council. He understands that such testing will be at his expense.
(l) To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Council, at the Council's expense.
(m) To attend a Review Interview at the Council in three months or as otherwise directed by the Council.
(n) To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners.
(o) To forward to the Medical Council of NSW every three months a record of his attendance for treatment by his treating practitioners. The record must include:
(a) The date of each attendance for treatment;
(b) The name of the treating practitioner; and
(c) The contemporaneous signature of the treating practitioner
1. In the period from 18 December 2014 to 4 May 2015 there were 31 days when, in breach of the conditions of his registration, the practitioner worked at the 5 Ways Medical Centre without another doctor present on the premises. The council did not become aware of these breaches till much later.
2. A further council Review Interview occurred on 27 March 2015 and the recommendation was that the current conditions remained unchanged.
3. The same result occurred from a Council Review Interview on 11 June 2015.
4. There was a further Council Review Interview on 24 September 2015, and it recommended that random EtG testing cease. That recommendation was endorsed by the Health Committee on 17 November 2015.
5. On 10 December 2015 a further Council Review Interview occurred and the recommendation was that the practitioner move to a 6 monthly review cycle.
6. The Health Care Complaints Commission filed its complaint with the Tribunal on 8 January 2016.
7. On 4 February 2016 the Health Committee Delegate endorsed the recommendation of the reviewers that the practitioner be moved to a 6 monthly review cycle and if he maintains his positive progress over the next 6 months, consideration could be given to a recommendation to move to random UDT's at the next Council Review Interview.
8. From 4 February 2016, the conditions on the practitioner's registration were as follows:
Practice Conditions
(a) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).
(b) To obtain Council approval prior to changing the nature or place of his practice.
(c) To practice only in a group practice approved by the Medical Council of NSW were there are at least 2 registered medical practitioners, (excluding the subject practitioner), where there is one other registered medical practitioner usually on site.
(d) To authorise the Council to notify his practice partners of his practice conditions and any issues arising in relation to compliance with any of his conditions.
(e) To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions.
Health Conditions
(a) Not to prescribe for self-medication.
(b) To attend for treatment by a general practitioner of his choice, at a minimum of an annual basis, and at other times at a frequency to be determined by the practitioner and the treating practitioner. To notify the Council, in writing the name of the treating practitioner within 2 weeks of changing treating practitioners, should his treating practitioner change. To authorise the treating practitioner to confirm attendance in writing to the Council and to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change)
(c) To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change)
(d) To attend for treatment by a clinician of his choice specialising in Drug & Alcohol (different from the primary treating psychiatrist in Health Condition 3), at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend or treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
(e) To continue taking any medication prescribed by his treating practitioners
(f) That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council Appointed practitioner
(g) Not to self-administer
(a) any Schedule 4D or 8 Drug; or
(b) any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication.
Such medications must only be prescribed and taken at the direction of his treating practitioner
(h) That should he be prescribed or directed to take:
(a) any Schedule 4D or 8 Drug; or
(b) any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication
the practitioner must notify the Council Appointed Psychiatrist and the Council. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner.
(i) To attend for thrice weekly Urine Drug Testing (UDT), in strict accordance with the Council'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 UDT will be at his expense.
(j) To abstain completely from the consumption of alcohol.
(k) [Completed/Removed/Expired.]
(l) To attend for review by the Council Appointed Psychiatrist on a six (6) monthly basis or as otherwise directed by the Council, at the Council's expense.
(m) To attend a Review Interview at the Council in six (6) months or as otherwise directed by the Council.
(n) To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners.
(o) To forward to the Medical Council of NSW every three months a record of his attendance for treatment by his treating practitioners. The record must include:
(a) The date of each attendance for treatment;
(b) The name of the treating practitioner; and
(c) The contemporaneous signature of the treating practitioner
1. The next Council Review Interview occurred on 1 June 2016, and it recommended that the practitioner move to random UDT's. That recommendation was endorsed by the Health Committee on 1 July 2016.
2. The hearing was conducted on 1, 2, and 3 August 2016. The orders were made on 3 August 2016, and these are the reasons.
The Complaints
1. The complaints are that the practitioner, being a medical practitioner registered under the National Law:
Complaint One
Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(c) of the National Law in that he has contravened conditions to which his registration was subject as particularised below.
Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
Background to Complaint One
(a) The practitioner was granted conditional registration to practice by the former Medical New South Wales Board ("the Board") on 17 August 2000 under the Medical Practice Act 1992 (repealed) (MP Act).
(b) In 2001 the practitioner was made a Fellow of the Royal Australian College of General Practitioners. The practitioner ceased to be registered in NSW on 18 July 2001 and from October 2001 to November 2009, he practised in New Zealand.
(c) The practitioner returned to NSW and on 29 March 2010, the Board granted the practitioner registration as a Specialist General Practitioner under section 7(1)(E) of the MP Act.
(d) The practitioner worked as a medical practitioner at Bateau Bay Medical Centre from 29 March 2010 until 15 September 2011. The practitioner worked as a medical practitioner at Reliance Wyoming Medical Practice ("the Practice") from December 2011.
(e) On 4 February 2011, the former Pharmaceutical Services Branch of the then NSW Department of Health made a notification to the Council concerning the practitioner.
(f) On 3 March 2011, following proceedings under section 150 of the National Law, the Council imposed conditions on the practitioner's registration including that he surrender his authority to have possession of, prescribe, supply, dispense, administer or handle any drug of addiction (Schedule 8 drugs). On 17 March 2011, the practitioner surrendered his authority to prescribe schedule 8 drugs accordingly.
(g) Further proceedings under s150 of the National Law occurred on 16 May 2011, 4 August 2011, 10 October 2011, 8 July 2013 and 23 January 2014. The practitioner was suspended from practising under section 150 of the National Law with effect from 23 January 2014 until 12 December 2014.
(h) The practitioner was admitted to the Impaired Registrant Program under the National Law on 4 August 2011. Impaired Registrant Panel Interviews were held on 4 August 2011 and 11 October 2013.
(i) On 3 March 2011 the practitioner's registration was made subject to conditions under section 150 of the National Law, which remained in place until the practitioner's registration was suspended on 24 January 2014, including:
1. The practitioner is not to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs). ("Condition A")
7. Not to self-administer:
(a) any Schedule 4D or 8 Drug; or
(b) any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication.
Such medications must only be prescribed and taken at the direction of his treating practitioner. ("Condition B")
(j) On 18 October 2013 the practitioner's registration was made subject to another condition under section 150 of the National Law, which remained in place until his registration was suspended on 24 January 2014, as follows:
10. To abstain completely from the consumption of alcohol ("Condition C")
(k) Proceedings under s150A of the National Law were held on 12 September 2014 and 12 December 2014. On 12 December 2014, the Council removed the practitioner's suspension and allowed him to practise with revised conditions, including:
3. To practice only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner), where there is one other registered medical practitioner usually on site." ("Condition D")
Particulars of Complaint One
(1) The practitioner contravened a condition to which his registration was subject, namely Condition A, in that he prescribed and/or possessed and/or administered Pethidine to the following patients:
(a) Patient A on 19 November 2013
(b) Patient B on 7 November 2013;
(c) Patient C on 157 November 2013;
(d) Patient D on 15 November 2013;
(e) Patient E on 19 November 2013;
(f) Patient F on 18 November 2013;
(g) Patient G on 4 November 2013;
(h) Patient H on 12 June 2013
(i) Patient I on 7 November 2013
(j) Patient J on 19 November 2013
(k) Patient K on 26 November 2013
(2) Between 6 and 29 November 2013, the practitioner breached a condition to which his registration was subject, namely Condition B, by self-administering Pethidine.
(3) In or around November 2013 the practitioner breached a condition to which his registration was subject, namely Condition C, by consuming alcohol.
(4) Between 18 December 2014 and 4 May 2015 the practitioner contravened a condition to which his registration was subject, namely Condition D, in that he was the only practitioner on site at the Practice on the following dates:
(a) 18 December 2014;
(b) 31 December 2014;
(c) 5 January 2015;
(d) 6 January 2015;
(e) 7 January 2015;
(f) 8 January 2015;
(g) 9 January 2015;
(h) 12 January 2015;
(i) 14 January 2015;
(j) 15 January 2015;
(k) 19 January 2015;
(l) 21 January 2015
(m) 22 January 2015;
(n) 28 January 2015;
(o) 29 January 2015;
(p) 2 February 2015;
(q) 4 February 2015
(r) 19 February 2015;
(s) 23 February 2015;
(t) 26 February 2015;
(u) 27 February 2015;
(v) 4 March 2015;
(w) 5 March 2015;
(x) 6 March 2015;
(y) 23 March 2015
(z) 30 March 2015;
(aa) 10 April 2015;
(bb) 13 April 2015;
(cc) 20 April 2015;
(dd) 27 April 2015
(ee) 4 May 2015
Complaint Two
Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has:
(i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
(ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
as particularised below. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified
Background to Complaint Two
The background to Complaint One is repeated and relied upon
Particulars of Complaint Two
(1) The practitioner gained access to the Practice computer system without permission or authority by falsely identifying himself as Practitioner A and created a false prescription purportedly issued by Practitioner A for:
(a) Patient A on 19 November 2013 for 2 ampoules of Pethidine 100mgs/2mIs;
(b) Patient B on 7 November 2013 for 5 ampoules of Pethidine 100mgs/2mIs;
(c) Patient D on 15 November 2013 for 2 ampoules of Pethidine 100mgs/2mIs;
(d) Patient E on 19 November 2013 for 2 ampoules of Pethidine 100mgs/2m1s;
(e) Patient F on 18 November 2013 for 2 ampoules of Pethidine 100mgs/2m1;
(f) Patient I on 7 November 2013 for 5 ampoules of Pethidine 100mgs/2mgs (2 repeats);
(g) Patient J on 19 November 2013 for 5 ampoules of Pethidine 100mgs/2mIs;
(h) Patient K on 26 November 2013 for 2 ampoules of Pethidine 100m1s/2m1s.
(2) The practitioner gained access to the Practice computer system without permission or authority by falsely identifying himself as Practitioner B and created a false prescription purportedly issued by Practitioner B for:
(a) Patient C on 15 November 2013 for 2 ampoules of Pethidine 100mgs/2m1s;
(b) Patient G on 4 November 2013 for 5 ampoules of Pethidine 100mgs/2mIs (2 repeats).
(3) The practitioner gained access to the Practice computer system without permission or authority by falsely identifying himself as Practitioner A and attempted to inappropriately delete a false prescription created by him and purportedly issued by Practitioner A:
(a) on 19 December 2013, in relation to the record of the prescription of 2 ampoules of Pethidine 100mgs/2mIs for Patient A issued on 19 November 2013;
(b) on 11 November 2013, in relation to the record of the prescription of 5 ampoules of Pethidine 100mgs/2mIs for Patient B issued on 7 November 2013;
(c) on 15 November 2013, in relation to the record of the prescription of 2 ampoules of Pethidine 100mgs/2mIs for Patient D issued on 15 November 2013;
(d) on 18 November 2013, in relation to the record of the prescription of 2 ampoules of Pethidine 100mgs/2mIs for Patient F issued on 18 November 2013;
(e) on 5 December 2013, in relation to the record of the prescription of 5 ampoules of Pethidine 100mg/2m1 for Patient I issued on 7 November 2013.
(4) The practitioner gained access to the Practice computer system without permission or authority by falsely identifying himself as Practitioner B and attempted to inappropriately delete a false prescription created by him and purportedly issued by Practitioner B:
a. on 15 November 2013, in relation to the record of the prescription of 2 ampoules of Pethidine 100mgs/2mIs for Patient C issued on 15 November 2013;
b. on 8 November 2013, in relation to the record of the prescription of 5 ampoules of Pethidine 100mgs/2mIs for Patient G issued on 4 November 2013;
Complaint Three
Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine as particularised below. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
Background to Complaint Three
The background to Complaint One is repeated and relied upon.
Particulars of Complaint Three
(1) The practitioner made false and misleading entries in patient records when he recorded that Practitioner A had consulted with certain patients in circumstances where Practitioner A had not consulted with the patients as per the entries, as follows:
(a) Patient A on 19 November 2013;
(b) Patient B on 7 November 2013;
(c) Patient 0 on 15 November 2013;
(d) Patient E on 19 November 2013;
(e) Patient F on 18 November 2013;
(f) Patient J on 19 November 2013;
(g) Patient K on 26 November 2013
[there is no paragraph (2)]
(3) The practitioner made a false and misleading entry in a patient's record when he recorded that Practitioner B had consulted with Patient G on 4 November 2013 in circumstances where Practitioner B had not consulted with Patient G as per the entry.
Complaint Four
Is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (I) of the National Law in that the practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 as particularised below. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified
Background to Complaint Four
The background to Complaint One is repeated and relied upon
Particulars of Complaint Four
(1) The practitioner contravened requirements of the Health Practitioner Regulation National Law Regulation (NSW) 2010 Clause 7 and Schedule 2 in that:
(a) the following records were not an accurate statement of fact as required by Schedule 2 Clause 2(3) in that they recorded that Practitioner A consulted with the patients when in fact it was the practitioner who consulted with:
(i) Patient A on 19 November 2013;
(ii) Patient B on 7 November 2013;
(iii) Patient D on 15 November 2013;
(iv) Patient E on 19 November 2013;
(v) Patient F on 18 November 2013;
(vi) Patient J on 19 November 2013;
(vii) Patient K on 26 November 2013
(b) the following records failed to identify the person who made the entry as required by Schedule 2 Clause 3(2) in that they recorded that Practitioner A consulted with the patients when in fact it was the practitioner who consulted with:
(i) Patient A on 19 November 2013;
(ii) Patient B on 7 November 2013;
(iii) Patient D on 15 November 2013;
(iv) Patient E on 19 November 2013;
(v) Patient F on 18 November 2013;
(vi) Patient J on 19 November 2013;
(vii) Patient K on 26 November 2013.
(2) The practitioner contravened requirements of the Health Practitioner Regulation National Law Regulation (NSW) 2010 Clause 7 and Schedule 2 in that:
(a) on 4 November 2013 the record for Patient G was not an accurate statement of fact as required by Schedule 2 Clause 2(3) in that it recorded that Practitioner B consulted with the Patient G when in fact the practitioner did;
(b) on 4 November 2013 the record for Patient G failed to identify the person who made the entry as required by Schedule 2 Clause 3(2) in that it recorded that Practitioner B consulted with the Patient G when in fact the practitioner did.
(3) The practitioner contravened requirements of the Health Practitioner Regulation National Law Regulation (NSW) 2010 Schedule 2 Clause 2(d) 2 in that the practitioner prescribed Pethidine without recording in the patient's records the amount administered in relation to:
(a) Patient A on 19 November 2013;
(b) Patient B on 7 November 2013;
(c) Patient C on 15 November 2013;
(d) Patient D on 15 November 2013;
(e) Patient E on 19 November 2013;
(f) Patient F on 18 November 2013;
(g) Patient K on 26 November 2013.
Complaint Five
Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has:
i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine
as particularised below. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified
Background to Complaint Five
The background to Complaint One is repeated
Particulars of Complaint Five
(1) The practitioner knowingly made false and misleading statements to the Council during section 150 proceedings on 23 January 2014 when he:
(a) stated that he had not consumed alcohol since July 2013;
(b) denied having ever taken Tramadol in his life;
(c) denied using Pethidine since November 2011
Complaint Six
Is guilty of unsatisfactory professional conduct under section 1398(1)(a) and/or (I) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine
as particularised below. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
Background to Complaint Six
The background to Complaint One is repeated
Particulars of Complaint Six
(1) The practitioner prescribed a schedule 8 drug, namely Pethidine, without the authority under clause 77 of the Poisons and Therapeutic Goods Regulation in relation to:
(a) Patient A on 19 November 2013;
(b) Patient B on 7 November 2013;
(c) Patient C on 15 November 2013;
(d) Patient D on 15 November 2013;
(e) Patient E on 19 November 2013;
(f) Patient F on 18 November 2013;
(g) Patient G on 4 November 2013;
(h) Patient H on 12 June 2013;
(i) Patient I on 7 November 2013;
(j) Patient J on 19 November 2013;
(k) Patient K on 26 November 2013.
(2) The practitioner was in possession of Pethidine, which he failed to store in a locked safe contrary to clause 73 of the Poisons and Therapeutics Goods Regulation 2008, that was prescribed and dispensed to:
(a) Patient A on 19 November 2013;
(b) Patient B on 7 November 2013;
(c) Patient C on 15 November 2013;
(d) Patient D on 15 November 2013;
(e) Patient E on 19 November 2013;
(f) Patient F on 18 November 2013;
(g) Patient G on 4 November 2013;
(h) Patient H on 12 June 2013;
(i) Patient I on 7 November 2013;
(j) Patient J on 19 November 2013;
(k) Patient K on 26 November 2013
Complaint Seven
Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has:
(i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
(ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine as particularised below. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
Background to Complaint Seven
The background to Complaint One is repeated
Particulars of Complaint Seven
(1) The practitioner prescribed Pethidine in circumstances where it was not clinically appropriate to do so in relation to:
(a) Patient A on 19 November 2013;
(b) Patient B on 7 November 2013;
(c) Patient D on 15 November 2013;
(d) Patient E on 19 November 2013;
(e) Patient F on 18 November 2013;
(f) Patient G on 4 November 2013;
(g) Patient H on 12 June 2013;
(h) Patient I on 7 November 2013;
(i) Patient J on 19 November 2013;
(j) Patient K on 26 November 2013
(2) [withdrawn at hearing]
(3) The practitioner issued a prescription for Pethidine without providing the prescription to the patient to whom it was prescribed in relation to:
(a) [withdrawn at hearing]
(b) Patient H on 12 June 2013;
(c) [withdrawn at hearing]
(d) Patient J on 19 November 2013
Complaint Eight
Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
(ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
Background to Complaint Eight
The background to Complaint One is repeated
Particulars of Complaint Eight
(1) Complaints One to Seven and the particulars thereof are repeated and relied upon both individually and cumulatively.
Complaint Nine
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 Nine
The background to Complaint One is repeated and relied upon
Particulars of Complaint Nine
(1) The practitioner suffers from:
(a) Bipolar II Disorder;
(b) Substance abuse/dependence in relation to:
(i) [withdrawn at hearing]
(ii) Pethidine;
(c) Depression
(2) The practitioner self-administered Pethidine during the period 6 to 29 November 2013
(3) The particulars of Complaints One to Six are repeated and relied upon both individually and cumulatively.
Admissions by the Practitioner
1. The practitioner admits the whole of the allegations in complaint one, with the exception only of subparagraph (h) (referring to Patient H) at paragraph (1) of the particulars.
2. The practitioner admits the whole of the allegations in complaint two.
3. The practitioner admits the whole of the allegations in complaint three.
4. The practitioner admits the whole of the allegations in complaint four.
5. In relation to the complaint five, the practitioner admits the allegation in particular 1(c), but denies the allegations in particulars 1(a) and 1(b).
6. In relation to complaint six, the complaint is admitted, except only for sub-paragraph 1(h) and 2(h) of the particulars;
7. In relation to complaint seven, the terms of the complaint are admitted, with the exception only of paragraph 1(g) of the particulars and paragraphs 3(a) and 3(c) of the particulars;
8. The practitioner admits the allegations in complaint eight, subject to the issues raised by the practitioner in respect of complaints one, five, six, and seven.
9. The practitioner admits the allegations in complaint nine, on the basis that the practitioner's Bipolar II Disorder, his dependence on Pethidine and his depression are in remission.
10. On all the evidence, including the admissions the Tribunal is satisfied that all of the admitted allegations are proved on the balance of probabilities.
Credit of the Practitioner
1. The complaints that are admitted involve considerable dishonesty and deceit. They include conduct of the practitioner of obtaining the passwords of colleagues to access their patient records without their consent or knowledge. It involved creating false records in the names of colleagues in the practice and prescribing Pethidine for patients for the purpose of taking and using some of the Pethidine dispensed pursuant to the prescription for each of those patients.
2. It involved extensive breaches of conditions imposed on his registration pursuant to a Section 150 enquiry.
3. In cross-examination the practitioner at times avoided questions. When he was asked whether at the Section 150 hearing on 23 January 2014, apart from denying that he had used Pethidine since November 2011, he had told the truth, he avoided the question.
4. The practitioner has given false evidence to the Section 150 hearing on 23 January 2014 about his use of Pethidine, his consumption of Tramadol, and his consumption of alcohol on or before 13 November 2013.
5. At a time when he knew he was using Pethidine, the practitioner challenged the Pethidine result on a sample taken on 22 November 2013. He questioned the testing procedures. He conceded this. He said "I had reason to question the result; the positive result is one thing but the sampling and collection methods is another".
6. When he was cross-examined about the positive test result for Tramadol in July 2013, he avoided questions and volunteered unresponsive answers. He denied consuming Tramadol but pathology tests established he did.
7. At the s150 hearing in January 2014 he denied having consumed alcohol since July 2013 when he knew that his urine sample of 13 November 2013 tested positive for alcohol. He lied.
Complaints in relation to Patient H
1. Complaint 1 paragraph (1)(h) is alleged that the practitioner contravened a condition to which his registration was subject, namely condition A, in that he prescribed and / or possessed and / or administered Pethidine to Patient H on 12 June 2013.
2. Although on that date he accessed the Practice computer system and made an entry for a consultation with Patient H, the evidence falls short of establishing the allegation, in particular (1)(h) of complaint 1. His evidence is that in entering patient history for Patient H, the computer automatically prepared a prescription for Pethidine as the patient had previously been prescribed that drug. However, his evidence is that he did not print the prescription and that he did not sign any prescription for Pethidine for that patient. There is also evidence from the patient that the patient received from him that day a prescription for an antibiotic, but did not receive any prescription for Pethidine. The antibiotic was dispensed. There is no evidence of any Pethidine prescription for Patient H being dispensed on or after 12 June 2013.
3. Accordingly, the Tribunal finds that allegation (1)(h) of particular 1 has not been established.
4. Paragraph (1)(h) of the particulars of Complaint 6 is an allegation that the practitioner prescribed Pethidine for Patient H on 12 June 2013 without the authority under Clause 77 of the Poisons and Therapeutic Goods Regulation 2008. However, the evidence fell short of establishing that the practitioner signed or even printed a prescription for Patient H for Pethidine that day. Paragraph (1)(h) of Complaint 6 is therefore not established.
5. Paragraph (2)(h) of the particulars for Complaint 6 alleges that the practitioner was in possession of Pethidine prescribed and dispensed for Patient H on 12 June 2013 and failed to store it in a locked safe as is required by Clause 73 of the Poisons and Therapeutic Goods Regulation 2008. However, there is no evidence to establish that any such Pethidine was prescribed or dispensed or that he had it in his possession. Accordingly, that aspect of Complaint 6 has not been proved.
6. The particulars of Complaint 7 include paragraph (1)(g), which alleged that the practitioner prescribed Pethidine on 12 June 2013 for Patient H in circumstances where it was not clinically appropriate to do so. However, the evidence does not establish that he prescribed Pethidine to Patient H on that day, and to that extent Complaint 7 has not been proved.
7. Furthermore in relation to Complaint 7, paragraph (3)(b) alleged that the practitioner on 12 June 2013 issued a prescription for Pethidine for Patient H, but failed to give the prescription to the patient. Because there is no proof that any prescription was signed or event printed, this aspect of Complaint 7 has not been proved.
Complaint 5
1. The practitioner admitted that he knowingly made false and misleading statements to the Medical Council during Section 150 proceedings on 23 January 2014 when he denied using Pethidine since November 2011. His responses included challenging the reliability of the testing procedures of the samples when he was informed of 7 positive results.
2. The practitioner admitted in his statement of 7 July 2016, about 1 month before the hearing, that he had "knowingly made false and misleading statements to the Council during Section 150 proceedings on 23 January 2014 when he …. denied using Pethidine since November 2011." Indeed, Pethidine was detected in 7 toxicology results from his tests in the period 7 November 2013 to 2 December 2013 inclusive but throughout the s150 hearing he persisted in denying he used pethidine during that period.
3. He conceded that he said at that time, in challenging the result of the pathology tests, that he hadn't taken any opiate since prior to November 2011, but he conceded that that was a lie.
4. He denied that he had "knowingly" made false and misleading statements to the Council during the s150 proceedings on 23 January 2013 when he:
1. Stated he had not consumed alcohol since July 2013; and
2. Denied having ever taken Tramadol in his life
While the Tribunal does not know why the practitioner took Tramadol, the pathology evidence is compelling and the Tribunal is satisfied on the balance of probabilities that the practitioner did take Tramadol in early 2013 and at the s150 hearing in January 2014 he denied taking it. Given his professional qualifications and experience, the Tribunal is satisfied that he would have known he took Tramadol and therefore the denial was made with the knowledge that the denial was false and misleading.
1. A urine sample of the practitioner taken on 13 November 2013 proved positive for Alcohol. The allegation in paragraph (a) of the particulars of Complaint 5 is that the practitioner "knowingly made false and misleading statements to the Council during Section 150 proceedings on 23 January 2014 when he stated that he had not consumed alcohol since July 2013". The evidence establishes that he told the s150 hearing that he had not consumed Alcohol since July 2013.
2. The practitioner's response to this allegation is that he does not deny consuming alcohol, but that he did not know he was consuming alcohol because it was in fruit cake he ate. He alleged the fruit cake was given by a patient to the doctors and staff of the practice and he ate some of it at Morning tea on 12 November 2013. The evidence clearly establishes that he knew when he told the S150 hearing that he hadn't consumed alcohol since July 2013 that that was untrue because he knew a urine sample taken from him on 13 November 2013 tested positive for alcohol.
3. The practitioner told the s150 hearing on 23 January 2014 that his use of pethidine and alcohol was related to his chronic depression and started in his twenties. (He turned 30 in May 1987, nearly 30 years ago.) He said in his statement of 7July 2016 that he started using pethidine in 1984. In their letter to the Council of 15 August 2014, his solicitors said on his instructions that he first experimented with Pethidine "in the early 1980's" (more than 30 years ago).
4. He said in his statement of 7 July 2016 in these proceedings that he commenced drinking alcohol when he was at university. He says he drank only when he went to a party and didn't drink frequently. When he did drink he consumed a lot of alcohol. Regardless of the quantity he drank, he didn't suffer hangovers. He said that once he was married, he usually drank a glass of wine each evening with dinner. Sometimes there were "lengthy periods" when he drank no alcohol. Some weekends when he binge drank were followed by several months of abstinence.
5. He said that in October 2011 he "hit rock bottom" and used both alcohol and pethidine. He said that he never drank at work or on week days and between alcohol binges he was usually alcohol free for 6 to 8 months. He said he did not stop drinking till January/February 2012 when he entered the Medical Council's Health Programme. He said that since then he had been largely alcohol free but had relapsed on "3 or 4 occasions" and on such occasions would drink a bottle of whisky on a weekend. He said the last occasion was in July 2013.
6. In their letter of 15 August 2014 written on his instructions, his lawyers said that he had not used alcohol after June 2013 and at June 2013 his alcohol consumption was "a bottle of whisky (or sometimes more) per day over the weekend", he never drank at work and drank "very rarely during the week".
7. At the s150 hearing there was considerable expert evidence from Mr Bowron, Senior Hospital Scientist, NSE Health Pathology, Drug Toxicology Unit, NSW Forensic & Analytical Science Unit. That evidence establishes that the pathology report disclosing the positive result for Alcohol in his urine sample taken on 13 November 2013 was valid.
8. The Council wrote to the practitioner on 3 December 2013 enclosing the report. The letter requested a written response by 10 December 2013 for consideration by the Council.
9. When the practitioner responded to that result for the sample of 13 November 2013 by letter to the Medical Council dated 5 December 2013, he stated "I have not had any alcohol for the past 3 months. The detection of EtG in the sample dated 13 November 2013 is likely due to Christmas Cake presented to our rooms by a patient. I did not realise that brandy is used to preserve the cake. From my memory I had 2 helpings. I apologise for this and in future shall focus more on food that may contain alcohol…" His statement, "I have not had any alcohol for the last 3 month" indicates that he had not had alcohol since August 2013.
10. In the practitioner's solicitor's letter of 15 August 2014 to the applicant, it was stated that he last consumed alcohol in June 2013 when he had a "binge drinking episode". It attributed his pethidine relapse in October/November 2013 to him being hypomanic with impaired judgment, inadequate management of his Bipolar II Disorder and stress at work.
11. The practitioner initially alleged that he had 2 pieces of Christmas fruit cake. Later he was alleging that he ate "several" pieces.
12. The context of the sample of 13 November 2013 needs to be taken into account. It occurred in the period 7 November to 2 December when he had tested positive for pethidine on 7 occasions.
13. A urine sample provided to the laboratory on 3 July 2013 and received by the toxicology unit on 5 July was not tested because the sample was insufficient. The container had leaked from the screw-on lid, which might not have been closed properly. The sample taken 2 days later on 5 July 2013 proved positive for Tramadol. Two urine samples from the practitioner, taken on 13 December 2013 and 19 December 2013 were dilute. That could have occurred by him consuming water before giving the sample or by someone adding water after the sample was given.
14. At the s150 hearing in January 2014 he said he usually took the sample "first thing in the morning" before he went to work. He added that any "hydration was for physiological reasons and not because he was going to give a urine sample". But, he then conceded "this particular day" what he believed happened was an assumption; not a recollection.
15. In their letter of 15 August 2014 to the Council written on his instructions, his solicitors said that he "is very likely to have inadvertently produced dilute urine samples given his long distance running training regime. Specifically, we are instructed Dr Bester runs 10 kilometres most mornings. Following his run, Dr Bester rehydrates."
16. His evidence at the s150 hearing was that his usual practice was to take the sample "first thing in the morning". But in August he was saying his usual practice was rise in the morning, run 10 kilometres and rehydrate before he took the sample. If that was his usual practice, then it is inconsistent with that practice that only 2 samples were dilute. They were within 6 days of each other. This indicates that the procedure on those 2 days was not his "usual practice". "
17. In his statement of 7 July 2016, the respondent stated:
"…between June 2013 and late November 2014 I did not knowingly consume alcohol. In late November 2014, I did consume alcohol.
32. I have not consumed alcohol since late November 2014. I no longer have any desire to drink alcohol and I have developed certain techniques to avoid it when I am out socially…."
1. It could be suggested that the practitioner's statement of 7 July 2016 confused "late November 2014" with 13 November 2013. But on the face of it, it seems clear that he was saying he did not knowingly consume alcohol between June 2013 and late November 2014, but did (knowingly) consume it in late November 2014. He did not suggest in his statement that the alcohol he refers to consuming in November 2014 was contained in the 2013 Christmas Cake.
2. This interpretation is supported by paragraph 51 of his statement where he says:
"I did not knowingly consume alcohol in November 2013. Rather, I consumed it inadvertently when I ate several pieces of Christmas fruit cake which a patient had given to me. I cannot now recall which patient gave us the Christmas Cake".
1. In cross-examination, the practitioner conceded that, as Dr Diamond had reported, there was a history of alcohol abuse in the practitioner's family. He said "I was OK. I drank more than most people would think safe. I would drink at weekends and then I only drank whiskey". Of the urine sample of 13 November 2013, he said that "I can only assume that the test result was from Christmas Cake". He said it was a gift of Christmas cake from an elderly patient and he ate 2 pieces. He has also said that he ate the cake the day before the urine sample was taken (i.e. on 12 November). That was more than 6 weeks before Christmas. It was very early for a gift of Christmas cake and therefore unlikely.
2. The sample on 13 November 2013 occurred after positive test results for Pethidine for samples of 7 November 2013 and 12 November 2013, and subsequently 5 positive samples from 14 November 2013 through to 2 December 2013 detecting Pethidine. The urine sample which revealed that he consumed alcohol was therefore taken during a period where he was using Pethidine.
3. In cross-examination the practitioner conceded that his ingestion of alcohol occurred "in the middle of a hypomanic episode". He conceded that his recollection would be affected by the episode and by his use of Pethidine at the time. He conceded that it was possible that he had consumed alcohol but did not recall it. He then said that he ate "several pieces" of Christmas Cake. Later still he referred to eating "2 or 3 pieces". When it put to him that 13 November 2013 was "early" for Christmas Cake, he said "Christmas Cake is cooked and baked a long time". That was no explanation. In answer to further questions he said he could not recall whether the cake smelt of alcohol. He said "a nurse told me it was laced with alcohol. I did not know I was using alcohol at that time".
4. He said in cross-examination:
"…well, I mean, I've not – I don't drink at all. I have not had any alcohol since July, actually. So my [indistinct] is testament to that. It was low. In that time, sort of, it was new to me, the EtG testing. It's a very sensitive test and I think it was caused by Christmas Cake at [indistinct] which at the time I was not as alert as I should be. I'm a bit more educated now about food products that have alcohol and I didn't know that Christmas Cake is laced [indistinct] basically from, it's preserved in brandy or something, but I had 2 pieces".
1. When asked when he would have eaten the Christmas Cake he said "at morning tea when patients – old ladies bring lots of presents to the practice". He was asked when he would have given the urine sample and he said "I couldn't remember the exact date when I had the test was, what day it was, but I mean it's a random test". He said that the test would have been the next day.
2. He said that if the sample was taken the next day it would have still been positive because the test is "incredibly sensitive. The smallest amount of alcohol will give you a positive result. I've never had any alcohol at work ever in my life and I don't drink at all".
3. He was reminded that the urine sample was taken at 1:00pm on 13 November 2013. He responded:
"…Okay. So it would have been morning tea time. I honestly don't see – to give a recollection of exactly what I've eaten or what I've done a week or 2 later is almost impossible. The only thing that I could think of what I had alcohol in was only when one of the nurses said after I had about 2 or 3 pieces, 'oh, this is laced in alcohol'. I didn't even consider it. And recently we actually had Panettone, which I said to my wife, 'I wonder if that's got alcohol in this too' but we looked at the insert on the box and there wasn't any alcohol mentioned, but it tasted fermented, so I don't know, but it hasn't come back positive. I don't drink at all".
1. He then volunteered evidence about the alcohol stored in his home and him not drinking and resisting offers of a glass of wine.
2. He testified in the Section 150 hearing that from when he saw Dr Diamond in 2011 he stopped drinking, but although largely alcohol free, he had, because of impulsive behaviour, drinking binges on and off. He said there had been 3, maybe 4, occasions in that period when he would drink a bottle of whiskey on Friday night. He testified that between binges he would be alcohol free for "many months, usually 6 months, 8 months".
3. He said that he thought the trigger for these binges was "probably my personality – it is more introvert" and "I would think probably [indistinct] a build-up of anxiety or so – an expression of unresolved – or inability to cope with it as an [indistinct] sort of, or who's someone who's never learnt how to cope with it".
4. The practitioner knew when he attended the Section 150 hearing on 23 January 2014 the pathology results indicated he had consumed Tramadol and also indicated that he had consumed alcohol on about 13 November 2013.
5. The practitioner obtained the results of the urine testing of the sample of 13 November 2013 within 7 days. However, he did not provide any evidence corroborating his alleged consumption of fruit cake on 13 November 2013, or corroborating his inference that the fruit cake contained alcohol. He offered no evidence by any staff member to corroborate the allegation that a patient provided a fruit cake and that he ate some of it.
6. He also provided no evidence that he made any endeavour to obtain evidence from any staff member or to identify the patient who gave the cake.
7. Given the absence of any corroboration of the allegations that there was a Christmas cake and that he ate some of it, the lack of evidence that the fruit cake contained alcohol, and the allegation that the gift of a Christmas cake occurred on 12 November, 6 weeks before Christmas, considerable doubt falls on his evidence in this regard. However, the practitioner's credit is poor for other reasons already discussed. The Tribunal does not, on all the evidence, accept the practitioner's evidence that he ate fruit cake and his theory that the fruit cake contained alcohol. The Tribunal members are satisfied on the balance of probabilities that he drank alcohol.
8. The Tribunal finds on the balance of probabilities that the sample of 13 November 2013 produced a positive result for alcohol because the practitioner had knowingly consumed alcohol and he lied to the s150 hearing when he blamed the positive result on fruit cake.
9. For these reasons all 3 particulars of Complaint 5 have been established.
Complaint 7 Particular 3(d).
1. Complaint 7 is admitted except for particular 1(g) (Not proved), particular 2 (withdrawn) , particulars 3(a) and (c) ( withdrawn), particular 3(b) ( not proved) and particular 3(d), which is disputed. Particular 3(d) is an allegation that the practitioner on 19 November 2013 issued a prescription for Pethidine without providing the prescription to Patient J for whom it was prescribed.
2. The practitioner's admissions include
* that on 19 November 2013 he prescribed 5 ampoules of Pethidine for Patient J (complaint 1 particular 1((j)) by gaining access to the practice computer system without permission or authority by falsely identifying himself as Practitioner A;
* created a false prescription purportedly issued by Practitioner A (complaint 2 particular 1(g));
* made false and misleading entries in the Patient's records recording that practitioner A had consulted with Patient J on 19 November 2013 when practitioner A had not (complaint 3 particular 1(f)));
* failed to record who made the entry in J's record, by falsely stating it was practitioner A (Complaint 4 particular 1(a)(vi) & (b)(vi));
* in so doing the Practitioner prescribed a Schedule 8 drug without Authority to do so under clause 77 of the Poisons and Therapeutic Goods Regulation 2008(Complaint 6 particular 1(j)); and
* was in possession of pethidine prescribed for and dispensed to Patient J on 19 November 2013 which he failed to store in a locked safe in breach of the requirements of Clause 73 of the Poisons and Therapeutic Goods Regulation 2008.
1. The admission that the prescription was "dispensed to Patient J" implies that Patient J had possession of the prescription and had it dispensed. It is thus inferred by the practitioner's admissions that the prescription was given to patient J by the practitioner.
2. But there is evidence that suggests otherwise. The Report of the Pharmaceutical Services Unit (Tab 4) provides evidence that the Practitioner on 19 November 2013 accessed the practice computer using his own user name and password and recorded at 2.20.14 pm that he had been consulted by Patient J and had given him a prescription for a spray and a letter of referral to a specialist. The record does not identify the reason for the consultation or any request for pethidine or any allegation of pain. He then accessed the practice computer in the name of Practitioner A on the same day and at 2.25.34 pm he made a false entry of a consultation by Patient J with Practitioner A for "Cervical disc prolapse" and recorded that Pethidine injections were prescribed by Practitioner A. Practitioner A denied she saw Patient J that day.
3. The Tribunal finds on the balance of probabilities that because the prescription was in the name of Practitioner A (not the respondent) and the Patient had not consulted Practitioner A and from the record of the consultation with the Practitioner there was no proposal for such a prescription:
* the Practitioner did not make the false medical record and the prescription for pethidine while the patient was present; and
* he did not give the forged pethidine prescription by Practitioner A to Patient J.
1. The Tribunal finds that particular 3(d) of complaint 7 has been proved.
Unsatisfactory Professional Conduct / Professional Misconduct
1. "Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law as including:
"Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience" (para 139B(1)(a)); and
"Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (para 139B(1) (l))."
1. Under Section 139E, for the purposes of the National Law "professional misconduct" of a registered health practitioner includes:
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.
Evidence of Dr Gary Deed
1. Dr Deed provided expert evidence in relation to the issue of whether the conduct subject of the complaints amounted to unsatisfactory professional conduct or not. In the following list of proved complaints, the effect of Dr Deed's expert opinion (if any) about such conduct is included in bold print at the end of the description of the conduct proved.
Complaints 1 to 7 - Complaints Proved
1. In summary, the following aspects of complaints 1 – 7 have been proved:
1. Complaint 1 – contravention of condition of his registration that he not prescribe and/or possess or administer Pethidine by prescribing it for 10 patients on 10 separate occasions in the period 19 November 2013 to 26 November 2013. Each such contravention is unsatisfactory professional conduct per s139B (1) (c) of the National Law.
2. Complaint 1 – contravention of a condition of his registration that he not self- administer pethidine in that between 6 and 29 November 2013 he self-administered pethidine on at least 7 occasions. Each such contravention is unsatisfactory professional conduct per s139B (1) (c) of the National Law.
3. Complaint 1 – contravention of a condition of his registration that he not consume alcohol in that on or about 13 November 2013 he knowingly consumed alcohol. Such contravention is unsatisfactory professional conduct per s139B (1) (c) of the National Law.
4. Complaint 1 - contravention of a condition of his registration that he practise only with at least one other practitioner onsite unless with the approval of Council in that without any approval of Council in the period 18 December 2014 to 4 May 2015 on 31 days he practised without any other practitioner onsite. Each such contravention is unsatisfactory professional conduct per s139B (1) (c) of the National Law.
5. Complaint 2 – in the period 19 November 2013 to 26 November 2013 on 10 occasions he accessed the practice computer system without permission or authority by falsely identifying himself as another doctor in the practice and creating a false prescription for pethidine for each of 10 patients. (Unsatisfactory professional conduct on each occasion)
6. Complaint 2 - In the period 8 November 2013 to 19 December on 7 different occasions he accessed the practice computer system without permission or authority by falsely identifying himself as practitioner A or practitioner B and on each occasion attempted to delete a different false record he had created of that practitioner prescribing pethidine for a patient. (Unsatisfactory professional conduct on each occasion)
7. Complaint 3 - In the period 7 November 2013 to 26 November on 8 different occasions he made false and misleading entries in patient records recording that practitioner A or practitioner B had consulted with a patient in circumstances where that practitioner had not; (Unsatisfactory professional conduct on each occasion)
8. Complaint 4 - he contravened the requirements of the Health Practitioner Regulation National Law Regulation (NSW) 2010 in that in the period 4 November 2013 to 26 November 2013
1. on 9 occasions he falsely recorded that practitioner A or practitioner B consulted with a patient when it was the practitioner. Each such contravention is unsatisfactory professional conduct per s139B (1) (b).; (Unsatisfactory professional conduct on each occasion)
2. on 8 occasions he failed to identify who made the consultation entry in the patient record as required by Clause 3(2), Schedule 2 of the Health Practitioner Regulation National Law Regulation (NSW) ). Each such contravention is unsatisfactory professional conduct per s139B (1) (b) of the National Law; and
3. On 7 occasions in the period 7 November 2013 to 26 November 2013 he prescribed pethidine without recording in the patient's records the amount administered. Each such contravention is unsatisfactory professional conduct per s139B (1) (b) of the National Law. (Unsatisfactory professional conduct on each occasion)
1. Complaint 5 - During the section 150 proceedings on 24 January 2014 he knowingly made false and misleading statements when he:
1. Stated that he had not consumed alcohol since July 2013;
2. Denied having ever taken Tramadol in his life; and
3. Denied using pethidine since November 2011.
1. Complaint 6 - particular 1: in the period 7 November to 26 November 2013 he on 10 different occasions prescribed a schedule 8 drug, pethidine, without authority under clause 77 of the Poisons and Therapeutic Goods Regulation 2008. Each such contravention is unsatisfactory professional conduct per s139B (1) (b) of the National Law.
2. Complaint 6 – Particular 2: in the period 4 November 2013 to 26 November 2013 he on 10 different occasions was in possession of pethidine and contrary to the requirement of clause 73 of the Poisons and Therapeutic Goods Regulation 2008 he failed to store it in a locked safe. Each such contravention is unsatisfactory professional conduct per s139B (1) (b) of the National Law. (Unsatisfactory professional conduct on each occasion)
3. Complaint 7 – particular 1: On 9 occasions in the period from 4 November 2013 to 26 November 2013 he prescribed pethidine where it was not clinically appropriate to do so. (Unsatisfactory professional conduct on each occasion)
4. Complaint 7 particular 3(d): On 19 November 2013 he issued a prescription for pethidine for Patient J without providing the prescription to the Patient for whom it was prescribed. (Unsatisfactory professional conduct).
1. Item (9) was 3 instances of giving false and misleading evidence to a s150 hearing. It was dishonest conduct that was seriously unethical. It constituted unethical conduct relating to the practice or purported practice of the practitioner's profession and under para 139B(1)(l) of the National Law each instance is unsatisfactory professional conduct.
2. Accordingly each of the allegations listed above constituted unsatisfactory professional conduct.
Complaint 8
1. This complaint is that the respondent is guilty of professional misconduct under Section 139E of the National Law. The Tribunal finds that the complaints proved established that the practitioner is guilty of instances of unsatisfactory professional conduct which when considered together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
2. Accordingly, pursuant to Section 139E of the National Law, the practitioner is guilty of professional misconduct.
Complaint 9
1. This complaint is that the Practitioner has impairments that detrimentally affect, or are likely to detrimentally affect, his capacity to practice the profession of medicine. The impairments alleged are Bipolar II Disorder, Depression, and pethidine abuse/dependence.
2. The Council appointed expert Psychiatrist, Dr Jonathon Phillips, has reported extensively on the practitioner since 2011. In his report of 23 March 2015 he concludes that the practitioner has 2 mental impairments; Bipolar ll Disorder and Opioid Use Disorder, and that these have potential to detrimentally affect his capacity to practice medicine. He finds that both of these disorders satisfy the definition of "impairment" defined by the National Law, which provides in Section 5:
"impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect:
1. For a registered health practitioner or an application for registration in a health profession, the person's capacity to practise the profession; or …..
1. Dr Michael Diamond, psychiatrist, has also been a treating psychiatrist for the practitioner. Dr Diamond first saw the practitioner in late 2010 and diagnosed him as having Bipolar Disorder II and Polysubstance Abuse. Dr Diamond referred the practitioner to Dr Anthony Sams for treatment of his substance abuse. Dr Diamond wrote a report of 20 November 2014 at the request of the practitioner's solicitors, and his opinion, based on 2 consultations with the practitioner in 2014, refers to the practitioner suffering depression as part of his Bipolar II Disorder and recently "the promising response, particularly to management with Lithium", which he says will "provide some hope of more stable mood and better management of the effects of both depression and hypo-mania in his case".
2. He says that the practitioner had reported to him that "he has not consumed alcohol since October 2013". The evidence before the Tribunal is that he used it in November 2014, but there is no evidence of him using it since. Dr Diamond mentions that the practitioner is having treatment for his substance abuse with appropriate experts in that field, and that he is continuing regular treatment with his treating psychiatrist to manage his Bipolar II Disorder more effectively.
3. He says "in the long term, the practitioner has significant psychiatric vulnerability involving long standing chronic conditions with strong family history, and genetic underpinnings in all likelihood. It means that he will remain susceptible to relapse from these conditions that have, in the past, clearly been demonstrated to affect his practise of medicine safely. He will therefore require long term management in the treatment sense, but also with regard to accountability and monitoring by the Registration Authority".
4. Dr Phillips, in his more recent report of 26 July 2016, refers to the Opioid Abuse Disorder being in remission. It appears that the practitioner has not used Pethidine since November 2013.
5. He says in this report that he agrees with Dr Diamond's opinion that the practitioner is currently impaired in relation to both Bipolar Disorder and substance abuse dependence. However, he says "that whilst the impairments stand, he is well treated for both disorders, and is in remission".
6. He also agreed with Dr Diamond's opinion that when the practitioner's Bipolar Disorder "is well managed and well controlled and for as long as he remains fully abstinent from substance abuse of any type, his competency to practise medicine is unlikely to be questionable".
7. The practitioner admits the impairments of Bipolar II Disorder, substance abuse/dependence in relation to Pethidine, and depression, but contends that his Pethidine addiction is in remission and his Bipolar II Disorder and consequent episodes of depression are currently managed.
Orders Sought by the Health Care Complaints Commission
1. Upon completion of the evidence, the orders sought by the Health Care Complaints Commission were as follows:
(1) Pursuant to s149C(1)(b) of the National Law, the practitioner's medical registration is suspended for at least a three month period;
(2) Pursuant to s149A(1)(a) of the National Law, the practitioner is reprimanded.
(3) The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner regulation National Law (NSW).
(4) Sections 125 to 127 of the Health Practitioner regulation National Law (NSW) are to apply should the registrant's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the Medical National Board.
(5) Pursuant to s149A(1)(b) the following conditions are imposed on the practitioner's registrations:
Practice Conditions
(a) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drugs) as defined by the Poisons & Therapeutic Goods Act 1966 (NSW);
(b) To obtain Council approval to changing the nature of place of his practice.
(c) To practice only in a group practice approved by the Medical Council of NSW where there are at least 3 registered medical practitioners (excluding the subject practitioner) where there is always at least one other registered medical practitioner always on site. For the purpose of monitoring this condition, the practitioner is to provide the Council with copies of the practice appointment book on any dates specified by the Council to confirm compliance with this condition.
(d) To authorise the council to notify all medical practitioners at the practitioner's place of practice of his practice conditions, and any issues arising in relation to compliance with any of his conditions.
(e) To notify the Council of any change in practice partners / associates within seven (7) days of a practice partner / associate either leaving the practice or commencing work at the practice.
(f) To authorise and consent to any exchange of information between the council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions.
Health Conditions
(a) Not to prescribe for self-medication.
(b) To attend for treatment by a general practitioner of his choice at a minimum of an annual basis, and at other times at a frequency to be determined by the practitioner and the treating practitioner. To notify the Council, in writing the name of the treating practitioner within 2 weeks of changing treating practitioners, should his treating practitioner change. To authorise the treating practitioner to confirm attendance in writing to the Council and to inform the Council of failure to attend for treatment, termination of treatment of if there is a significant change in health status (including significant temporary change).
(c) To attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change).
(d) To attend for treatment by a clinician of his choice, specialising in Drug & Alcohol (different from the primary treatment psychiatrist in Health Condition 3) at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change)
(e) To continue taking any medication prescribed by his treating practitioners.
(f) That the extent of his professional duties is to be guided by his health status and the advice of his treating practitioners.
(g) Not to self administer:
(a) any Schedule 4D or 8 Drug; and
(b) any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication.
Such medications must only be prescribed and taken at the direction of his treating practitioner.
(h) That should he be prescribed or directed to take:
(a) any Schedule 4D Drug; or
(b) any narcotic derivative; or
(c) any non-prescription compound analgesic or cold medication.
(i) To attend for Random Urine Drug Testing (UDT) in strict accordance with the Council'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 UDT will be at his expense.
(j) To abstain completely from the consumption of alcohol.
(k) To attend for review by the Council Appointed Psychiatrist on a six (6) monthly basis or as otherwise directed by the Council, at the Council's expense.
(l) To attend a Review Interview at the Council in six (6) months or as otherwise directed by the Council, at the Council's expense.
(m) To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners.
(n) To forward to the Medical Council of NSW every three (3) months a record of his attendance for treatment by his treating practitioners. The record must include:
(a) The date of each attendance for treatment;
(b) The name of the treating practitioner;
(c) The contemporaneous signature of the treating practitioner.
1. After the Health Care Complaints Commission Counsel provided the orders sought, and made submissions. Counsel for the practitioner then made submissions in response. The practitioner agreed generally with the orders proposed by the Commission.
2. The issues in dispute or of note were as follows:
1. Costs: The practitioner conceded that there should be an order for the practitioner to pay the costs of the Health Care Complaints Commission;
2. The practitioner opposed any cancellation or suspension and submitted that a fine would be sufficient mark of disapproval and might achieve the same objective. The maximum fine under the relevant section of the National Law is $30,000 ( 20 penalty units).
3. The Tribunal members raised with counsel for the parties that it may be appropriate given the extensive breaches by the practitioner of conditions previously imposed on his registration, for some of the conditions to be imposed to be Critical Compliance Conditions. Counsel for the Health Care Complaints Commission suggested that if this were to be done it should be limited to Practice Conditions 1 and 3 and Health Conditions 1, 7, 9 and 10. Counsel for the practitioner submitted that the difficulty with such conditions is that there may be a breach of such a condition, then, even if the breach is inconsequential, unintended or beyond the control of the practitioner, it leads to automatic cancellation. The presiding member raised the possibility of conditions prohibiting the use of Pethidine and prohibiting the doctor from practising without another doctor present on site might be made Critical Compliance Conditions. Counsel for the practitioner said that this can lead to unintended and unfair consequences if there is an unavoidable or accidental breach. Counsel for the practitioner submitted that because alcohol is often contained in food and unless a person is a chemist and / or a master chef, the person would not know that there is alcohol in the food. It was submitted it was therefore not fair to have a Critical Condition prohibiting the practitioner from consuming alcohol.
1. After an adjournment for the Panel to discuss matters further, it was indicated on behalf of the practitioner that he would consent to Practice Condition 1 being made a Critical Compliance Condition. It was also indicated that he would consent to Health Condition 7 being made a Critical Compliance Condition.
2. After a further adjournment for the panel to discuss further, the hearing resumed.
3. The Panel then sought any submissions regarding Condition 3 of the Practice Conditions being altered to read in the second line "there are at least 3 registered medical practitioners, (including the subject practitioner)". There was no objection raised.
4. A proposal was raised by the panel that Practice Condition 4 be altered so it reads:
"to authorise the Council to notify all medical practitioners at the practitioner's place of practice of his practice conditions and any issue arising in relation to compliance with any of his conditions, and to request those practitioners to raise with the Council any concerns they have about the practitioner or his practice
1. There was no objection by either party to that proposal.
2. At that time it was also raised with the parties that the Panel was considering adding to Health Condition 8 of the draft conditions the words:
the practitioner must notify any Council appointed psychiatrist and the Council. In addition, within 7 days he must provide the Council with written confirmation of such treatment from the treating practitioner.
1. There was no opposition by either party to that proposal.
2. The Panel then completed the drafting of the orders and the orders were announced.
3. In relation to order 2, suspending the practitioner's registration, the practitioner then asked for the commencement of the suspension period to be specified to be delayed and the Panel agreed to delay the commencement until 23 August 2016 and made that provision in the orders.
4. The orders were then announced and engrossed later.
The Period of Suspension
1. The Tribunal has taken into account that as a result of the practitioner having resumed use of pethidine in November 2013, his registration was suspended from 23 January 2014 till 12 September 2014.
2. The elements of the practitioner's professional misconduct are so numerous and so serious that there should be a further period of suspension for 6 months. Of particular concern is the numerous breaches of conditions imposed on his registration and the conduct involving dishonesty and deceit. The suspension is particularly for the purposes of protecting the public by deterring the practitioner and other practitioners from such conduct and reinforcing the standards of the profession. But it is also for the purpose of demonstrating to the public and the profession the disapproval of such conduct and supporting public confidence in the profession.
Practice Conditions
1. The practice conditions the Tribunal has made are designed to ensure the practitioner does not prescribe, supply, possess or handle any drug of addiction, that his colleagues in his practice are aware of his practice conditions and at least one of them is present in the practice whenever the practitioner is there, and that the medical council is kept informed of changes in his place of practice or the other practitioners practising there.
Health Conditions
1. The Health Conditions are also designed to protect the public by measures to ensure ongoing treatment and monitoring for the purpose of his addiction continuing to be in remission and his Bipolar II Disorder continuing to be managed.
Critical Compliance
1. Because of his prolific breaches of previous conditions on his registration, practice condition 1 and health conditions 1 and 7 should be critical conditions the contravention of which will result in the practitioner's registration being cancelled.
Royal Australian College of General Practitioners
1. The practitioner is a member and Fellow of the College and the Panel is concerned that the College be aware of the orders if considering the practitioner for any role in governance or teaching and will therefore require the HCCC to notify the College of these orders.
Costs
1. The applicant seeks an order that the respondent pay its costs of the proceedings. The respondent concedes that such an order should be made.
2. Clause 13 of Schedule 5D of the National Law applies, rather than Section 60 of the Civil and Administrative Tribunal Act 2013 (see sub-clause 13(4) of Schedule 5D).
3. The power to award costs in clause 13 is a general power, and that requires that generally costs follow the event (HCCC v Dinnaker [2009] NSWMT 8: Ohn v Walton (1995) 36NSWLR 77; HCCC v Dr Mazzaferro [2011] NSWMT 9).
4. The applicant has succeeded on almost all of the Complaints and there has been a finding of professional misconduct against the practitioner and orders suspending his registration.
5. Unless there are other circumstances that justify departure from the general rule, the respondent should pay the applicant's costs. It has not been submitted that there is any such circumstance and the evidence discloses none.
6. Accordingly, there should be an order for the practitioner to pay the applicant's costs.
Non Publication Order
1. The privacy of any patient referred to in these proceedings should be protected by a non publication order.
The Orders
1. The orders of the Tribunal made 3 August 2016 (as subsequently amended under the slip rule) therefore were:
1. The Practitioner is guilty of professional misconduct;
2. Pursuant to s149C(1)(b) of the National Law the practitioner's medical registration is suspended for 6 months from 23 August 2016;
3. The Medical Council is the appropriate review body for the purposes of part 8, Division 8 of the Health Practitioner Regulation National Law (NSW);
4. Sections 125 to 127 of the Health Practitioner National Law (NSW) are to apply should the registrant's principal place of practice be anywhere in Australia other than in the New South Wales so that the appropriate review body in these circumstances is the Medical National Board;
5. Pursuant to s149A(1)(b) the following conditions are imposed on the practitioner's registration:
Practice Conditions
(1) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW);
(2) To obtain Council approval prior to changing the nature or place of his practice;
(3) To practice only in a group practice approved by the medial council of NSW where there are at least 3 registered medical practitioners, (including the subject practitioner), where there is always at least one other registered medical practitioner on site when he is there. For the purpose of monitoring this condition the practitioner is to provide the council with copies of the practice appointment book on any dates specified by the Council to confirm compliance with this condition;
(4) To authorise the Council to notify all medical practitioners at the practitioner's place of practice of his practice conditions and any issues arising in relation to compliance with any of his conditions, and to request those practitioners to raise with the Council any concerns they have about the practitioner or his practice;
(5) To notify the Council of any change in practice partners/associates within seven (7) days of a practice partner/associate either leaving the practice or commencing work at the practice; and
(6) To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions.
Health Conditions
(1) Not to prescribe for self-medication;
(2) To attend for treatment by a general practitioner of his choice, at a minimum of an annual basis, and at other times at a frequency to be determined by the practitioner and the treating practitioner. To notify the Council, in writing the name of the treating practitioner within 2 weeks of changing treating practitioners, should his treating practitioner change. To authorise the treating practitioner to confirm attendance in writing to the Council and to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including 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 the treating psychiatrist to inform the council 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) To attend for treatment by a clinician of his choice specialising in drug & alcohol (different from the primary treating psychiatrist in Health Condition 3) at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change);
(5) To continue taking any medication prescribed by his treating practitioners;
(6) That the extent of his professional duties is to be guided by his health status and the advice of his treating, and any Council appointed, practitioners;
(7) Not to self administer:
a. any schedule 4D or 8 Drug; or
b. any narcotic derivative; or
c. any non-prescription compound analgesic or cold medication.
Such medication must only be prescribed and taken at the direction of his treating practitioner;
(8) That should he be prescribed or directed to take:
a. any schedule 4D or 8 Drug; or
b. any narcotic derivative; or
c. any non-prescription compound analgesic or cold medication,
the practitioner must notify any Council appointed psychiatrist and the Council. In addition within 7 days he must provide the Council with written confirmation of such treatment from the treating practitioner;
(9) To attend for Random Urine Testing (UDT) in strict accordance with Council's protocol. Results of Urine Drug Testing to be forwarded to any Council appointed and treating practitioners and to the Council. He understands that such UDT will be at his expense;
(10) To abstain completely from the consumption of Alcohol;
(11) To attend for review by a Council appointed psychiatrist on a six (6) monthly basis or as otherwise directed by the Council, at the Council's expense;
(12) To attend a Review Interview at the Council in 6 months or as otherwise directed by the Council, at the Council's expense;
(13) To authorise the Council to forward copies of the Impaired Registrant's Panel Report, subsequent Council Review Interview reports and other information relevant to his impairment to any Council appointed practitioners and his treating practitioners; and
(14) To forward to the medical Council of NSW every three months a record of his attendance for treatment by his treating practitioners. The record must include:
a. The date of each attendance for treatment; and
b. The name of the treating practitioner; and
c. The contemporaneous signature of the treating practitioner.
6. Practice Condition 1 and Health Conditions 1 and 7 are critical compliance conditions, the contravention of which will result in the practitioner's registration being cancelled;
7. The applicant must provide the Royal Australian College of General Practitioners with a copy of these orders;
8. The practitioner must pay the costs of the applicant of or incidental to these proceedings as agreed or as assessed; and
9. Publication of the name of any patient referred to in the proceedings, or other information that identifies the patient, is prohibited.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 25 November 2016