Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157 Hearing dates: 7, 8, 9,10 March and 25 November 2016 Date of orders: 20 December 2016 Decision date: 20 December 2016 Jurisdiction: Occupational Division Before: The Hon F. Marks ADCJ Dr L. Cotterell (professional member) Prof R. Batey (professional member) M. Kelly (community member) Decision: 1. The respondent is guilty of professional misconduct 2. The registration of the respondent is cancelled with a non-review period of 2 years 3. The respondent is to pay the costs of the complainant. Catchwords: Medical Practitioner - inappropriate prescription of drugs of addiction without authority - inadequate clinical records - Held professional misconduct –registration cancelled - costs order. Legislation Cited: Health Care Complaints Act 1993. ss39(2), 90B(3), 139B Health Practitioner Regulation National Law (NSW), ss50, 139B, 139E, 145A, 149C Health Practitioner Regulation (New South Wales) Regulation, 2010, Schedule 2 Poisons and Therapeutic Goods Act, 1966, ss 4, 27, 28 Poisons and Therapeutic Goods Regulations, 2002, Cl 79 Poisons and Therapeutic Goods Regulations, 2008, cls 33, 34, 61, 79 Cases Cited: HCCC v Dr Nemeth [2012] NSWMT 4 Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99 Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981) HCCC v Do [2014] NSWCA 307 Ex parte Tziniolis : Re the Medical Practitioners Act (1996) 67 SR (NSW) 448 Category: Principal judgment Parties: Health Care Complaints Commission (complainant) Dr Mohammed Sadiq Asar (respondent) Representation: Counsel: S. Talbert (complainant) M. Lynch (respondent) Solicitors: Health Care Complaints Commission (complainant) Avant Law (respondent) File Number(s): 1520156 Publication restriction: Non-publication order with respect to the name of any patient of the respondent REASONS FOR DECISION Background 1. The respondent, Dr Mohammed Sadiq Asar was born in Afghanistan in 1957. He commenced studying to become a medical practitioner in Afghanistan but was unable to complete his degree because of the political situation then prevailing in that country. He completed his medical training in Pakistan, graduating from Karachi University in 1986. He completed an internship in Pakistan and in 1988 travelled to West Germany where he practised for a number of years as a medical practitioner. In 1996, the respondent emigrated to Australia and completed certification working in regional areas in New South Wales. He became a Fellow of the Royal Australian College of General Practitioners in 2002. The respondent commenced operating a practice at Quakers Hill in July 2002 and from 2004 until 2016 he was in solo practice at those premises. 2. At the time that his current problems commenced, he was working approximately 50 hours per week from 8am to 5:30pm Monday to Thursday, and half days on Friday and Saturday. 3. These proceedings have their genesis in investigations conducted by the Pharmaceutical Services Unit following a notification received from a pharmacist that she believed that the respondent was prescribing OxyContin 80 mg to a patient who was thought to be drug dependent. As a result of this notification, an officer of that Unit contacted the respondent in about September 2010 and discussed the particular patient. The respondent informed him that he had been prescribing 80 mg of OxyContin for that patient since 2008. The patient had commenced on 40 mg dose for a knee problem which had been increased over time. The officer informed the respondent that the particular patient had been prescribed Schedule 8 medication under an authority issued by NSW Health by another doctor. In the course of conversation, the respondent indicated that he had concerns about another patient whom he named. The respondent was informed that another doctor had applied to New South Wales Health to prescribe OxyContin 80 mg for that same patient. The respondent was advised by the officer that he was able to obtain details of dispensing records for patients through a service established for medical practitioners. 4. The officer forwarded the respondent guidelines issued by the Department for his information. That information referred to the necessity to obtain an authority to prescribe drugs of addiction under section 28 of the Poisons and Therapeutic Goods Act, 1966 ("PTG Act"). In essence, such an authority is required when prescribing drugs of addiction to a drug dependent person. The information provided to the respondent referred to "various diagnostic tools" to assist medical practitioners in diagnosing drug dependence. 5. The respondent again came to the attention of the Unit when it received an enquiry on 4 April 2013 concerning a patient of the respondent who was incarcerated and who asserted that he was being prescribed drugs of addiction by the respondent. Following further investigations, a letter was forwarded to the respondent from the Unit dated 23 April 2013. That letter named 23 persons thought to be patients of the respondent for whom he was prescribing Schedule 8 drugs without the requisite authority. He was informed that he was required to complete an application for authority to prescribe a drug of addiction under section 28 of the PTG Act. In addition, he was informed that there was concern about his prescribing habits of a Schedule 4 medication for some of his patients. The letter said in part: As you may be aware short acting benzodiazepines such as Alprazolam are frequently subject to abuse and dependence are often diverted for illicit sale. Alpazolam has been implicated in increased risk of overdose when combined with other opioids such as methadone. 1. On 2 August 2013, the respondent agreed that he would be prohibited from supplying or possessing drugs of addiction. 2. The respondent's circumstances were brought to the attention of the Medical Council of NSW who appointed delegates to conduct an enquiry under section 150 of the National Law. By order made on 31 January 2014 the delegates imposed practice conditions on the respondent's registration precluding him from prescribing, possessing, supplying or otherwise being involved in drugs of addiction referred to in Schedule 4D and Schedule 8 of the PTG Act. 3. Following further enquiries, the matter was referred to the complainant, the Health Care Complaints Commission which instituted proceedings before this Tribunal. These proceedings are constituted by an Amended Complaint which is in the following terms; NOTICE OF COMPLAINT AMENDED COMPLAINT The Civil and Administrative Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") THAT Dr Mohammad Sadiq Asar of (address deleted) ("the practitioner'), being a medical practitioner registered under the National Law: COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates that the knowledge, skill or judgement 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. Background At all relevant times Dr Mohammad Sadiq Asar was a registered medical practitioner practicing as a general practitioner at the Nirimba Medical Centre, 4a Douglas Road, Quakers Hill, in the State of New South Wales. PARTICULARS OF COMPLAINT ONE Patient A 1. The practitioner prescribed the drugs Oxycodone and Oxazepam to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without promptly referring Patient A to a specialist for treatment, review and/or advice; and d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 2. The practitioner prescribed the drug Oxycodone to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the Poisons and Therapeutic Goods Regulations 2008 (PTG Regs). b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and c. In an inappropriate combination with a benzodiazepine, namely Oxazepam. 3. The practitioner prescribed the drug Oxazapam to Patient A on the dates and in the quantities set out in the schedule attached and marked A inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient B 4. The practitioner prescribed the drugs Alprazolam and Oxycodone to Patient B on the dates and in the quantities set out in the schedule attached and marked B: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient B to a specialist for treatment, review and/or advice; and d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 5. The practitioner prescribed the drug Oxycodone to Patient B on the dates and in the quantities set out in the schedule attached and marked B: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and c. In an inappropriate combination with a benzodiazepine, namely Alprazolam. 6. The practitioner prescribed the drug Alprazolam to Patient B on the dates and in the quantities set out in the schedule attached and marked B inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient C 7. The practitioner prescribed the drugs Oxycodone and Oxazepam to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; and c. Without referring Patient C to a specialist for treatment, review and/or advice. 8. The practitioner prescribed the drug Oxycodone to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs 2002 or clause 79 of the PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; c. In an inappropriate combination with a benzodiazepine, namely Oxazepam. 9. The practitioner prescribed the drug Oxazapam to Patient C on the dates and in the quantities set out in the schedule attached and marked C inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient D 10. The practitioner prescribed the drug Oxycodone to Patient D on the dates and in the quantities set out in the schedule attached and marked D: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient D to a specialist for treatment, review and/or advice; d. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and e. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient E 11. The practitioner prescribed the drug Oxycodone to Patient E on the dates and in the quantities set out in the schedule attached and marked E: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient E to a specialist for treatment, review and/or advice; d. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and e. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient F 12. The practitioner prescribed the drugs Oxycodone, Codeine with Paracetamol and Diazepam to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; and b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 13. The practitioner prescribed the drug Oxycodone to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a. (deleted); b. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs. c. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and d. In an inappropriate combination with a benzodiazepine, namely Diazepam. 14. The practitioner prescribed the drugs Diazepam and Codeine with Paracetamol to Patient F on the dates and in the quantities set out in the schedule attached and marked F inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient G 15. The practitioner prescribed the drug Oxycodone to Patient G on the dates and in the quantities set out in the schedule attached and marked G: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. (deleted) d. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and e. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient H 16. The practitioner prescribed the drugs Alprazolam, Buprenorphine and Oxycodone to Patient H on the dates and in the quantities set out in the schedule attached and marked H: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; and c. Without referring Patient H to a specialist for treatment, review and/or advice. 17. The practitioner prescribed the drugs Oxycodone and Buprenorphine to Patient H on the dates and in the quantities set out in the schedule attached and marked H: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs 2002 or clause 79 of the PTG Regs 2008; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and c. In an inappropriate combination with a benzodiazepine, namely Alprazolam. 18. The practitioner prescribed the drug Alprazolam to Patient H on the dates and in the quantities set out in the schedule attached and marked H inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient I 19. The practitioner prescribed the drug Oxycodone to Patient I on the dates and in the quantities set out in the schedule attached and marked I: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient I to a specialist for treatment, review and/or advice; d. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and e. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient J 20. The practitioner prescribed the drugs Oxycodone and Clonazepam to Patient J on the dates and in the quantities set out in the schedule attached and marked J: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; and c. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 21. The practitioner prescribed the drug Oxycodone to Patient J on the dates and in the quantities set out in the schedule attached and marked J: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and prior to 10 May 2013. c. (deleted). 22. (deleted) Patient K 23. The practitioner prescribed the drug Oxycodone to Patient K on the dates and in the quantities set out in the schedule attached and marked K: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. (deleted); d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and f. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient L 24. The practitioner prescribed the drugs Alprazolam, Diazapam, Lorazepam, Oxycodone, Oxazepam and Phentermine to Patient L on the dates and in the quantities set out in the schedule attached and marked L: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; and c. Without promptly referring Patient L to a specialist for treatment, review and/or advice. 25. The practitioner prescribed the drug Oxycodone to Patient L on the dates and in the quantities set out in the schedule attached and marked L: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and c. In an inappropriate combination with benzodiazepines, namely Diazepam, Lorazepam and Oxazepam. 26. The practitioner prescribed the drugs Diazepam, Oxazepam and Lorazepam to Patient L on the dates and in the quantities set out in the schedule attached and marked L inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 33 of the PTG Regs 2002 and/or clause 34 of the PTG Regs 2008. 27. The practitioner prescribed the drug Alprazolam to Patient L on the dates and in the quantities set out in the schedule attached and marked L in an inappropriate combination with benzodiazepines, namely Diazepam, Lorazepam and Oxazepam. Patient M 28. The practitioner prescribed Oxycodone to Patient M on the dates and in the quantities set out in the schedule attached and marked M: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without promptly referring Patient M to a specialist for treatment, review and/or advice; d. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and e. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient N 29. The practitioner prescribed the drug Oxycodone to Patient N on the dates and in the quantities set out in the schedule attached and marked N: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient N to a specialist for treatment, review and/or advice; d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and f. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient O 30. The practitioner prescribed the drugs Alprazolam, Diazapam, Methadone, Oxazepam to Patient O on the dates and in the quantities set out in the schedule attached and marked O: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; and c. Without referring Patient O to a specialist for treatment, review and/or advice. 31. The practitioner prescribed the drug Methadone to Patient O on the dates and in the quantities set out in the schedule attached and marked O: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; c. For a period exceeding two months without obtaining an authority to do so, contrary to section 28(2) of the PTG Act; and d. In an inappropriate combination with benzodiazepines, namely Diazepam and Oxazepam. 32. The practitioner prescribed the drug Alprazolam to Patient O on the dates and quantities set out in the schedule attached and marked O: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. b. In an inappropriate combination with benzodiazepines, namely Diazepam and Oxazepam. 33. (deleted) Patient P 34. The practitioner prescribed the drug Oxycodone to Patient P on the dates and in the quantities set out in the schedule attached and marked P: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient P to a specialist for treatment, review and/or advice; d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and f. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient Q 35. The practitioner prescribed the drug Alprazolam to Patient Q on the dates and in the quantities set out in the schedule attached and marked Q: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient Q to a specialist for treatment, review and/or advice; d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; and e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient R 36. The practitioner prescribed the drug Oxycodone to Patient R on the dates and in the quantities set out in the schedule attached and marked R: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient R to a specialist for treatment, review and/or advice; and d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and f. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient S 37. The practitioner prescribed the drugs Diazepam and Oxycodone to Patient S on the dates and in the quantities set out in the schedule attached and marked S: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient S to a specialist for treatment, review and/or advice; and d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 38. The practitioner prescribed the drug Diazepam to Patient S on the dates and in the quantities set out in the schedule attached and marked S without obtaining an authority to prescribe drugs of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act) from the NSW Health Department, contrary to section 28(3) of the PTG Act. 39. The practitioner prescribed the drug Oxycodone to Patient S on the dates and in the quantities set out in the schedule attached and marked S: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient T 40. The practitioner prescribed the drug Oxycodone, to Patient T on the dates and in the quantities set out in the schedule attached and marked T: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient T to a specialist for treatment, review and/or advice; d. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and e. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient U 41. The practitioner prescribed the drug Oxycodone, to Patient U on the dates and in the quantities set out in the schedule attached and marked U: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. (deleted) d. (deleted) e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and f. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient V 42. The practitioner prescribed the drug Oxycodone, to Patient V on the dates and in the quantities set out in the schedule attached and marked V: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without promptly referring Patient V to a specialist for treatment, review and/or advice; d. (deleted); e. In an inappropriate combination with a benzodiazepine, namely Temazepam; f. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and g. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. Patient W 43. The practitioner prescribed the drug Oxycodone, to Patient W on the dates and in the quantities set out in the schedule attached and marked W: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without promptly referring Patient W to a specialist for treatment, review and/or advice; d, e and f (deleted). Patient X 44. The practitioner prescribed the drugs Alprazolam, Oxycodone and Methadone to Patient X on the dates and in the quantities set out in the schedule attached and marked X: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c and d (deleted). 45. The practitioner prescribed the drug Oxycodone to Patient X on the dates and in the quantities set out in the schedule attached and marked X: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of them PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and c. In an inappropriate combination with a benzodiazepines, namely Alprazolam. 46. The practitioner prescribed the drug Methadone to Patient X on the dates and in the quantities set out in the schedule attached and marked X: a. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and/or b. For a period exceeding two months without obtaining an authority to do so, contrary to section 28(2) of the PTG Act. Patient Y 47. The practitioner prescribed the drugs Diazapam and Oxycodone to Patient Y on the dates and in the quantities set out in the schedule attached and marked Y: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient Y to a specialist for treatment, review and/or advice; and d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 48. The practitioner prescribed the drug Oxycodone to Patient Y on the dates and in the quantities set out in the schedule attached and marked Y: a. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act; and c. In an inappropriate combination with a benzodiazepine, namely Diazepam. 49. The practitioner prescribed the drug Diazepam to Patient X on the dates and in the quantities set out in the schedule attached and marked X inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Regs. Patient Z 50. The practitioner prescribed the drug Oxycodone, to Patient Z on the dates and in the quantities set out in the schedule attached and marked Z: a. Without performing an appropriate medical assessment prior to issuing such prescriptions; b. Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c. Without referring Patient Z to a specialist for treatment, review and/or advice; d. When such prescribing was contraindicated as the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; e. Inappropriately and/or in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; and f. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person, as defined by section 27 of the PTG Act, contrary to section 28(3) of the PTG Act. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Background At all relevant times Dr Mohammad Sadiq Asar was a registered medical practitioner practicing as a general practitioner at the Nirimba Medical Centre, 4a Douglas Road, Quakers Hill in the State of New South Wales. PARTICULARS OF COMPLAINT TWO 51. Between 1 January 2012 and 2 August 2013 the practitioner issued private non-Pharmaceutical Benefit Scheme prescriptions for Schedule 8 drugs of addiction within the meaning of the PTG Act and/or Schedule 4D prescribed "restricted substances" within the meaning of section 4 of the PTG Act and/or clause 61 and Appendix D of the PTG Regs, to the following patients who each had Medicare numbers at the time of the practitioner's prescribing: a. Patient A; b. Patient B; c. Patient D; d. Patient E; e. Patient G; f. Patient H; g. Patient I; h. Patient M; i. Patient O; j. Patient P; k. Patient Q; l. Patient R; m. Patient S; n. Patient T; o. Patient U; p. Patient V; q. Patient X; and r. Patient Y. 52. The practitioner continued to prescribe Schedule 8 drugs of addiction within the meaning of the PTG Act without the relevant authority under s 28 of the PTG Act to the following patients who he knew or ought to have known were drug dependant, after he had received specific advice from the Pharmaceutical Services Unit on 23 April 2013 as to the circumstances in which he was required to obtain such an authority and raising concerns about the practitioner prescribing without authority to those patients: a. Patient A; b. (deleted) c. Patient D; d. Patient F; e. Patient G; f. Patient J; g. (deleted) h. Patient M; I, j and k (deleted). l. Patient V; m. (deleted) n. Patient X; and o. (deleted). 53. The practitioner failed to keep a drug safe in which to store any Schedule 8 drugs of addiction that he possessed at the Nirimba Medical Centre, contrary to clause 73 of the PTG Regs. 54. The practitioner failed to maintain a drug register at the Nirimba Medical Centre, contrary to clause 111 of the PTG Regs. COMPLAINT THREE Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010. Background At all relevant times Dr Mohammad Sadiq ASAR was a registered medical practitioner practicing as a general practitioner at the Nirmiba Medical Centre, (address deleted), in the State of New South Wales. PARTICULARS OF COMPLAINT THREE 1. The practitioner failed to maintain adequate medical records in accordance with Sch 2 to the Health Practitioner Regulation (NSW) Regulation 2010 for each of Patients A to Z in that the practitioner failed to record: a. Information known to the practitioner relevant to his diagnosis and treatment of patients including sufficient detail of: i. the patient's medical history; ii. the results of any physical examinations of the patient; iii. details of any examination of the patient's mental state; iv. progress of the patient at each visit; and v. diagnoses of the patient. b. Particulars of any clinical opinion reached by the practitioner; c. Plans of treatment for the patient (including recording the reasons for the practitioner's decision to prescribe particular medication); and d. A level of detail appropriate to the patient's case and/or to the medical practice involved. COMPLAINT FOUR 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 suspension or cancellation of the practitioner's registration. Background At all relevant times Dr Mohammad Sadiq Asar was a registered medical practitioner practicing as a general practitioner at the Nirimba Medical Centre, 4a Douglas Road, Quakers Hill, in the State of New South Wales. PARTICULARS OF COMPLAINT FOUR The Particulars for Complaints One, Two and Three above are relied upon and repeated, both individually and cumulatively. 1. The proceedings concern the circumstances of the treatment of 26 patients by the respondent. A summary of the factual situation as it applies to each of the patients may be gained from the particulars of each of the Complaints. We shall discuss the circumstances of some of the patients later. The evidentiary material 1. The respondent admitted all of the complaints and all of the particulars save for those which related to Patients K and W. The respondent also conceded in writing that the admitted conduct constituted in its totality both unsatisfactory professional conduct and professional misconduct. We shall deal later with the disputed particulars. 2. A great deal of documentary evidence was tendered in the proceedings including the respondent's clinical notes concerning each of the patients. On behalf of the complainant, expert reports of Dr A Patterson were tendered. Dr Patterson also gave oral evidence. The respondent filed statements and other evidentiary material and gave evidence. Dr John Murray Wright provided an expert report on behalf of the respondent and gave evidence. We shall refer to the documentary and other evidence given in the proceedings in the course of these reasons for decision. 3. We have not reproduced the Schedules for each of the patients referred to in Complaint One, but we set out below schedules prepared by the Complainant summarising the effect of these Schedules for each patient: ANNEXURE "B" PATIENT SCHEDULE FOR COMPLAINT ONE Patient Date Range Prescriptions Drug Class A 07/01/12 – 22/06/13 25 Narcotics and benzodiazapines B 11/02/12 – 01/05/13 14 Narcotics and benzodiazapines C 05/01/12 – 07/05/13 19 Narcotics and benzodiazapines D 07/01/12 – 06/04/13 9 Narcotics E 25/02/12 – 29/05/13 15 Narcotics F 10/01/12 – 24/06/13 68 Narcotics and benzodiazapines G 11/01/13 – 12/06/13 22 Narcotics H 10/01/12 – 25/05/13 26 Narcotics and benzodiazapines I 23/01/12 – 08/04/13 10 Narcotics J 11/01/12 – 20/06/13 41 Narcotics and benzodiazapines K 07/12/12 1 Narcotics L 23/07/12 – 22/06/13 29 Narcotics and benzodiazapines M 04/01/12 – 05/06/13 14 Narcotics N 10/01/12 – 26/03/13 6 Narcotics O 12/06/12 – 25/06/13 26 Narcotics and benzodiazapines P 18/01/12 – 27/03/13 10 Narcotics Q 27/02/12 – 19/06/13 21 Benzodiazapines R 21/01/12 – 03/04/13 15 Narcotics S 16/01/12 – 16/05/13 12 Narcotics T 26/04/12 – 17/06/13 16 Narcotics U 31/01/12 – 17/06/13 31 Narcotics V 03/01/12 – 16/05/13 19 Narcotics and benzodiazapines W 06/11/12 – 28/11/12 5 Narcotics X 04/01/12 – 11/06/13 25 Narcotics and benzodiazapines Y 06/06/12 – 20/12/12 4 Narcotics and benzodiazapines Z 21/03/13 – 04/04/13 2 Narcotics Dr John Murray Wright 1. The respondent consulted Dr John Murray Wright who saw him on four occasions, the last being 22 February 2016. Dr Wright provided reports and also gave oral evidence. 2. In a report of 22 February 2016, Dr Wright said that he first saw the respondent on 12 January 2015, having been referred by his general practitioner. He was asked to ascertain whether there were "any underlying and contributory psychological issues" concerning investigations then being conducted by the HCCC, "and to assess and give advice to (the respondent) regarding coping strategies." After dealing with the respondent's background, Dr Wright noted at the time of initial assessment the respondent told him: …that he was working to improve his knowledge in certain areas of practice such as dealing with patients requesting narcotic analgesics and benzodiazepines, patients with chronic pain, and also to better understand the regulatory framework that he was obliged to follow. There was a discussion at the time of a second consultation on 31 August 2015 concerning the completion of a course on general prescribing by the respondent and that he was happy practising not being able to prescribe drugs of addiction. There was also a discussion about the nature of the respondent's practice and: …the impact of running a solo practice where he saw between 40 and 50 patients per day. The discussion focused on the impact on his professional boundary management of the solo practice, and also the fact that he treated a number of people from his own community. He also at times treated members of his own family and told me that his wife was reluctant to see anyone else. There was a discussion concerning "boundary issues" as they related to treatment of the respondent's family, friends and community members with whom he was likely to socialise. Dr Wright thought that this discussion and the fact of the likelihood of disciplinary proceedings caused the respondent to consider these issues more thoughtfully. The respondent said that he was, at that time, contemplating joining a group practice in the future. 1. When seen on the third occasion on 7 December 2015, there was further discussion about the respondent's style and nature of practice and his attempts to address boundary and other knowledge deficit issues. The respondent said that he had attended further courses, that he no longer saw patients who required drugs of addiction but that his hours of work had not changed. The respondent told him that he was continuing to: …weigh up the potential benefits of abandoning his solo practice and joining a group practice in the future, freely acknowledging that he would be better able to manage some of the difficult patients that he had struggled with in the past, that he would have a likely better work-life balance, but that he was also conscious of the loss of autonomy associated with joining a group practice and possible financial consequences. 1. Dr Wright said that there was no evidence of any psychiatric impairment. He said that the respondent "was a resilient individual who had coped well with a number of personal and professional adverse events in his life." His treatment included a review of his coping strategies and psychological well-being "and detailed discussions about his awareness and management of boundary issues and the risks and/or benefits associated with solo v group practice." He thought that during the period in which he had seen the respondent, the last date then being in December 2015, that the respondent had taken "appropriate and significant steps to improve his deficits of knowledge, and to also understand his professional boundary obligations and challenges and to address those." He thought that the respondent was motivated to continue to improve in these areas. 2. In his oral evidence, Dr Wright said that the respondent had, over time, gradually gained insight into his past practices which had given rise to these proceedings. That insight had improved, particularly in recent times, but he nevertheless described the respondent's circumstances as being a "work in progress." Dr Wright made specific mention of the respondent having treated his wife, having self-prescribed medication, and he thought that the respondent was now thinking seriously about boundary issues and the fact that he was isolated in solo practice. 3. Dr Wright did not discuss the respondent's treatment of his patients in depth with him. His overall impression was that the respondent was unprepared to deal with the type of patient who was consulting him. He did not have a full understanding about the issues surrounding the treatment of chronic pain, long-term dependence on narcotics, and dealing with difficult patients. He assessed the respondent as having a significant knowledge deficit. 4. Dr Wright was not aware that the respondent had received advice from the Pharmaceutical Services Unit in 2010 and again in 2013 concerning his prescribing habits for Schedule 8 drugs. If he had known of this, Dr Wright said he would have discussed with the respondent why he had not followed that advice. This impacted on the respondent's lack of insight. Overall, Dr Wright did not feel that the respondent acted with reckless disregard of his responsibilities. We interpolate that we disagree. It is abundantly clear that the respondent was warned twice about his course of conduct, nevertheless he continued to prescribe drugs of addiction without authority, and even after he had surrendered his prescribing rights. 5. Dr Wright saw no clear evidence that the respondent was suffering from an underlying personality problem, although he had only seen him on four occasions and had not viewed any of the respondent's patient records. Dr Wright thought that there was no evidence of any narcissistic tendency or antisocial behaviour. He emphasised the respondent's life history which he thought was very relevant because it showed that the respondent was resilient and determined to overcome the significant challenges which had faced him in Afghanistan and in Pakistan. He thought that these challenges had desensitised the respondent which operated as a survival tactic. This is why he thought that the respondent was resistant to feedback from those in authority. However, Dr Wright emphasised that this was a hypothesis and not a conclusion. Finally, Dr Wright thought that the respondent was not impaired in terms of his practice of medicine. 6. Dr Wright was not convinced that the respondent was suffering from an unredeemable personality trait or disorder, that he now had some insight, and that he was unlikely to reoffend if he did not have prescribing rights for drugs of addiction. 7. Dr Wright thought that the respondent would be able to practice medicine safely but subject to conditions. Part of the conditions related to the fact that the respondent was working in an isolated practice with little interaction with colleagues and that he was subject to a level of intimidation and pressure from his patients. He thought that it was appropriate that the respondent should be subject to formal supervision and/or mentoring, that he should work in a group practice and that there should be a limitation on his hours of work and patient numbers. He needed formal contact with another practitioner who was experienced in patient boundaries and patient challenges. The patient details 1. We now come to deal with the circumstances of the patients referred to in the Complaints. The respondent conceded that he was guilty of misconduct as alleged in the particulars concerning most, but not all, of the patients. Accordingly, it is necessary that we consider in detail the circumstances of those patients in dispute. However, the mere recitation of the particulars does not reveal the full circumstances which apply to those patients where the respondent does not dispute the misconduct alleged against him. Because of this, we propose to deal with the circumstances of a few of these patients as well as considering those the subject of disputation. Patient A 1. There is no dispute concerning this patient. It is sufficient for present purposes if we refer to the opinion expressed by the expert retained by the complainant, Dr Andrew Patterson. The following summarises a number of matters referred to in his reports. 2. The records of the respondent show that he treated this patient between 26 January 2008 and 12 July 2013. During this time, the respondent prescribed 25 tablets of Oxazepam of 15 mg strength. He also prescribed 1344 tablets of Oxycodone of 80 mg strength, none of which was prescribed through Medicare, and therefore all of which were the subject of private scripts. 3. Dr Patterson was unable to find any record of "an appropriate assessment" of this patient at the first consultation. There was a notation of chronic pain syndrome but no history beyond a reference to a lower leg fracture. There was no notation as to why the patient consulted the respondent, there was no history of the patient's underlying health, or of any physical examination. There was no indication of any diagnosis and treatment plan. Furthermore, there was no record of how the injury to the left leg occurred, or previous medical history, and current treatment. A notation was made of a prescription for OxyContin 80 mg twice a day. Dr Patterson inferred that this dosage should have alerted the respondent to the fact that the patient had been taking OxyContin for a considerable period of time. This, in turn, should have alerted him to the requirement to obtain an authority under section 28 of the PTG Act. 4. On 27 September 2012, the respondent prescribed 25 tablets of oxazepam at a strength of 15 mg without making any record of any assessment of the Patient's complaint except for "has difficulty sleeping." 5. There was only one referral to a pain specialist which occurred on 28 May 2008 some four months after the patient first consulted the respondent. It was the opinion of Dr Patterson that the respondent should have referred the patient to a pain specialist immediately he was taking regular, high doses of opioids. There was a further record of a referral to RPA hospital on 4 August 2012, which does not state the purpose for the referral. 6. In the opinion of Dr Patterson there was no indication to prescribe OxyContin at that strength over that period. Furthermore, the prescription of Alepam for sleeping difficulty was not justified on the basis of the respondent's clinical notes. The product information for this substance warns against co-prescribing it with narcotic analgesics. The respondent should have been aware of this. 7. We should add that the schedule of prescriptions for OxyContin issued by the respondent to this patient indicates that the patient was prescribed many more tablets than he should have required, even assuming the maximum possible dose of 80 mg twice a day. Scripts for 56 tablets of this substance were issued on the following dates: 7 January 2012 25 January 2012 14 February 2012 9 March 2012 31 March 2012 21 April 2012 12 May 2012 2 June 2012 11 July 2012 4 August 2012 25 August 2012 15 September 2012 6 October 2012 25 October 2012 17 November 2012 1 December 2012 22 December 2012 12 January 2013 1 February 2013 21 February 2013 12 March 2013 30 March 2013 22 April 2013 11 May 2013 22 June 2013 1. As best we understand the respondent's response, he was content to acquiesce in the patient's request for the prescription of this drug of addiction at the maximum possible level over a long period of time, notwithstanding that he lacked the statutory authority to prescribe this drug, and that he had been warned that such an authority was required by law. 2. There is a notation of a report from a pain specialist dated 3 June 2008 indicating that this patient was not a good candidate for long-term opioid treatment and that if such treatment was to be continued there would need to be strict monitoring of compliance. Notwithstanding this, the respondent continued to prescribe OxyContin 80 mg twice daily until July 2013, without an appropriate authority and after being warned by the Pharmaceutical Services Unit of the need to obtain an authority. 3. Dr Patterson described the respondent's medical records as being "woefully inadequate" according to the standard set by the RACGP and the requirements of the Health Practitioner Regulation (New South Wales) Regulation 2010. 4. Finally, with respect to this patient, we note that all of the scripts for OxyContin were private scripts. As noted by Dr Patterson, private scripts are: …not subject to the same degree of oversight as is the use of PBS prescriptions for the same drugs. In order to avoid suspicion of irresponsible prescribing it is reasonable to expect that a practitioner would use a PBS prescription wherever possible. Of course, a private prescription is much more expensive to have supplied than one subsidised by the Medicare scheme. Patient B 1. There is no dispute concerning this patient. Dr Patterson noted that the respondent treated the patient between 2 August 2006 and 12 December 2013. Between 11 February 2012 and 1 May 2013, the respondent issued scripts for 100 tablets of 2 mg strength of Alprazolam and 617 tablets of 80 mg strength of Oxycodone. He had no authority to prescribe this medication. 2. Dr Patterson was unable to discern from the clinical notes any appropriate assessment of this patient before prescribing this medication. On 2 August 2006, there was a notation of "discogenic lower back pain". On 1 May 2013 there is a notation that the respondent declined to prescribe any further Oxycodone. There was no indication in the clinical notes of any appropriate assessment having been carried out. Nor was there any notation of any referral to a specialist during the period 11 February 2012 to 1 May 2013. There was no notation of any justification for prescribing this medication at that strength to this patient over that period of time. Furthermore, there is no indication that the respondent undertook any assessment of the condition of this patient so as to monitor the quantity and dosage of these drugs being dispensed to him. 3. As with Patient A, Dr Patterson noted that the medical records of the respondent were "woefully inadequate" as judged by the standards of the RACGP and the relevant Regulation. 4. As with Patient A, we note that a schedule of scripts issued by the respondent to this patient indicates that he prescribed more than was required, especially because he was prescribing the maximum permissible strength, namely 80 mg of OxyContin twice a day. For example, scripts for 56 tablets, enough to last 28 days were issued on 11 and 27 February, 27 March, 14 April, 12 May and 8 June 2012. Patient E 1. The clinical notes for this patient indicated that he first consulted the respondent on 10 March 2008. The only notation is "chronic pain syndrome", and that a prescription was issued for OxyContin tablets at a strength of 80 mg to be taken nightly. The patient returned on 17 March and was issued with a further prescription for the same medication. There is no notation of presenting symptoms. On 27 March, the patient attended again with a notation of chronic lower back pain and was again prescribed the same medication. On 5 April there is a notation of chronic lower back pain and a reference to further medication, and an x-ray and CT of the lower back. A prescription was issued for OxyContin. On 12 April, a further prescription for the same medication was issued but there are no notes concerning this consultation other than the issue of the script. The patient attended on 24 April complaining of an injury to his right eye. He was again prescribed OxyContin at 80 mg strength together with eye ointment. He attended further on 1 and 20 May and further scripts were issued for OxyContin. On 27 May, there is a notation of "going away" and OxyContin was prescribed. On 28 June there was a notation of "travelling to NZ" and further OxyContin was prescribed. On 14 July, the OxyContin dosage was changed to one tablet twice a day, but still at 80 mg strength. There is no notation of any symptoms. On 26 July there is a notation "was counselled and strongly advised to get off the OxyContin." A further prescription for OxyContin was issued. There is a notation of further counselling on 7 August, but another prescription was issued. Further scripts were issued on 25 August, 12 September, 29 September, and 15 October without any notation as to the patient's symptoms or condition. There is a further reference to counselling on 31 October when a script was issued. Another prescription was issued on 17 November. He again attended on 1 December and there is a notation that the receptionist informed the patient that he would not be given another prescription before 6 December. Nevertheless, he attended on 3 December and was given a prescription although counselled and advised to get off OxyContin. On 10 December, there is a notation that the patient was travelling to New Zealand to visit relatives for a few weeks and a further prescription was issued. He was counselled on 20 December and 5 January 2009, and scripts were issued on these dates. On 16 January, there is a notation that the patient was requesting his last script and would not attend on the respondent any further. A script was issued. On 27 January 2009, there is a notation of a referral letter, but no details. A script was issued that day. Further scripts were issued on 11 and 27 February. On 12 March, although there was a notation "well and stable", a further prescription was issued. Without recounting any further detail, scripts were issued again on 26 March 8 April 4 May 11 May 18 May 25 May 1 June 9 June 15 June 29 June, and 9 July. On 23 July there appears to have been an altercation with the patient insisting that he see the respondent and the respondent refusing, and the police being called. Notwithstanding this on 30 July the patient was given a referral letter to a drug and alcohol unit with a notation that the prescription of OxyContin had ceased. There was a further altercation on 31 July when the respondent refused to see the patient and the police were again called. The patient next telephoned on 9 March 2010 and the respondent declined to speak to him. However, the patient attended on 24 August 2010, was counselled but given a prescription for OxyContin at 80 mg strength. The respondent refused to see him on 12 October, but commenced seeing him again on 14 January 2011 when the patient was counselled and a prescription for OxyContin issued. Further scripts for OxyContin at the same strength were issued on 11 February, 9 March, 9 April, 3 May, 4 June, 24 June, 20 July 2011, 25 February, 21 March, 16 April, 10 May, 4 June, 11 July, 6 August, and 17 December 2012. Further scripts were issued on 8 January 2013. The respondent refused to see him on 31 January 2013. Nevertheless, he was again prescribed OxyContin on 4 February, 25 February, 22 March, and 22 April 2013. 2. In oral evidence, the respondent said that he had continued to see this patient and prescribe OxyContin for him even though he had obviously not attended the drug and alcohol unit after the referral of 30 July 2009, and after he had been counselled and advised to stop taking OxyContin. The respondent said that he felt that he was under a lot of pressure from this patient because he had a number of children. The only way that he could get rid of this patient apart from calling the police was to give in to his demands. We note that there is no notation of any such demands being made or, indeed, any notation of the personal circumstances of this patient in the respondent's clinical records. The respondent said that he did not defend his conduct in continuing to prescribe OxyContin to this patient. 3. Records available to us show that, in all but a few cases, the scripts which were issued were for 56 tablets, sufficient for a 28 day supply at twice a day. Of course, this dosage is the maximum advisable dosage of this drug. Patient K 1. This patient consulted the respondent on 7 December 2012. On that date, he prescribed 14 tablets of 40 mg strength of Oxycodone. The respondent did not hold an authority to prescribe this Schedule 8 drug. The respondent's clinical notes record the patient's address as being St Kilda, Victoria. The notes indicate that the patient was from interstate, that he was taking Oxycodone for lower back pain and had run out of his medication, and that he requested enough tablets for one week to "get back." 2. Dr Patterson, in his report noted that there was no record of the respondent having conducted an appropriate assessment of the patient prior to prescribing Oxycodone. He did not obtain any history of the patient's health or any details as to why the patient sought Oxycodone. No physical examination was conducted, and certainly nothing was recorded. Dr Patterson said that the respondent should have made contact with the patient's treating doctor to ensure that there was a genuine need for this Schedule 8 drug. Accordingly, it could not be established that there was any appropriate therapeutic purpose for the issue of this prescription, and certainly without making sufficient enquiries to exclude drug dependency. Dr Patterson noted that drug-seeking whilst interstate or away from a regular medical practitioner "is a common ploy utilised by drug dependent and drug seeking patients." Furthermore, the respondent's clinical notes were inadequate. 3. In his statement dealing with this patient, the respondent said that he had prescribed the medication for his lower back pain and that this was appropriate. Furthermore, there was no need to refer him for specialist treatment because he was merely travelling from interstate. The respondent said that he did not detect any sign of drug abuse, the medication prescribed was to cover the patient for a short period of time and an authority was not required for this one-off prescription. 4. Dr Patterson disputed the respondent's assertion. He thought that the fact that the patient was already taking 40 mg of Oxycodone twice a day was indicative that he had suffered from a condition for some considerable time and that he would not leave his home without adequate medication. The respondent said that he had contacted the doctor shopper program and that there was no record of this patient being registered. However, in the opinion of Dr Patterson this was not sufficient and the respondent should have made enquiries from the treating doctor after ascertaining relevant details. Furthermore, Dr Patterson said that it was inappropriate to prescribe Oxycodone on a first consultation, assuming that the patient was suffering from moderate to severe back pain. There was other appropriate medication for pain relief and, in any event, no notes were made to describe a reason for the patient's back pain. 5. The respondent was asked in cross-examination whether he had undertaken a physical examination. He said at first that he performed this by observing the patient as he came into the room. He did not remember whether he undertook any other physical examination. In any event, the respondent was adamant that he had conducted an appropriate medical assessment before prescribing this medication. When asked whether he could have contacted a medical practitioner in Victoria, the respondent said that that was not easy, but sometimes he made enquiries about the identity of the regular general practitioner and then added that he thought that he had done so on this occasion. Furthermore, the respondent said that he had asked the patient about his usual dose and he did not think that the patient was drug-dependent. In the absence of any clinical notes about these matters, we are sceptical that the respondent is able to recollect the details which he asserted in his evidence concerning a single visit from a patient whom he did not know which occurred in December 2012. 6. In all the circumstances, we are comfortably satisfied that paragraphs (a), (b), (e), and (f) of the Complaint have been made out. We are not so satisfied in connection with paragraph (d), because it is difficult to determine in the context of a single visit that the respondent either knew or ought to have known that the drugs were being or were likely to be abused. Patient L 1. As noted in the report of Dr Patterson, the respondent prescribed Schedule 4D and Schedule 8 drugs to this patient between 23 July 2012 and 22 June 2013 as follows: Alprazolam 2 mg 100 tablets Diazepam 5 mg 350 tablets Lorazepam 2.5 mg 450 tablets Oxazepam 30 mg 25 tablets Oxycodone 5 mg 40 tablets Oxycodone 10 mg 140 tablets Oxycodone 20 mg 40 tablets Phentermine 40 mg 180 tablets 1. The respondent's clinical notes contain reference to many consultations by the respondent between 28 August 2002 and 6 February 2014, covering a variety of conditions and symptoms. There is a continual prescription of Stilnox for insomnia dating back to November 2006. We agree with the observations of Dr Patterson, having reviewed the clinical records that there is no clear diagnosis contained within them which would provide any indication for the prescription of these drugs. There is no record also of any assessment having been made of the patient's condition prior to the prescription of these drugs. 2. Dr Patterson noted that the respondent had referred the patient to a psychologist in January 2013 and a psychiatrist in March 2013. He commented: These referrals were appropriate but not, in any sense, timely. By the time the referrals were made the large quantities of benzodiazepines, opioids and phentermine being prescribed by Dr Asar raise the strong possibility of dependence having developed. 1. Dr Patterson was critical of the prescription of Oxycodone for pain relief. He gave by way of example treatment for a fracture of the left humerus on 25 September 2012 with the prescription of Oxycodone 5 mg one tablet every six hours. He commented: On 10 October 2012, more than two weeks later, he changed the pain relief to oxycodone 10 mg twice daily, without recording any reason for the change. The appropriateness of continuing to prescribe opioids for the fractured humerus more than a fortnight after the injury is highly questionable, because at that time after this type of fracture it is unusual for a patient to require opioids for pain relief. Furthermore, the prescription of Oxazepam although on only one occasion was inappropriate against a background of overuse of other benzodiazepines. 1. All of this was compounded by the failure of the respondent to possess the requisite authority to prescribe these drugs. Dr Patterson also noted that it was inappropriate to prescribe a benzodiazepine together with a Schedule 8 drug, as is contained in product information issued for the prescription of benzodiazepines. 2. A schedule of prescriptions issued by the respondent for this patient indicate that he was prescribed 50 tablets of Diazepam of 5 mg strength to be taken once a day on each of 29 May, 13 June, 18 June, and 22 June 2013. Of course, these prescriptions were for many more tablets than were necessary according to the dosage recorded by the respondent. 3. The respondent conceded that he had prescribed excessive doses of these drugs and said that from time to time he was required to treat odd, specific types of patients who were difficult to manage. Patient M 1. The clinical notes for this patient commence on 23 April 2007. They are extremely brief. They indicate that he was complaining of back pain and was currently taking 80 mg of OxyContin twice a day. There is a notation "wants to go off the meths." And a further note "discussed." By 9 May 2007, the respondent had spoken with a drug and alcohol unit for detoxification by the patient which he underwent on 21 May. On 28 August 2007, the patient again consulted the respondent and was prescribed OxyContin 80 mg one tablet twice a day. This prescription was repeated on 12 September, 21 September, 2 October, 15 October, 29 October, 5 November, 19 November, 3 December, 17 December 2007, and then continually throughout 2008, 2009 and until November 2010 when it was reduced to 40 mg. It was later increased in December 2010 to 80 mg and remained at that level until 6 July 2013. 2. The particulars of complaint with which we are dealing is limited by the Complainant to the period between 4 January 2012 and 5 June 2013, and that is the only period that we shall consider for the purpose of assessing the misconduct of the respondent which he has admitted with respect to this patient. However, we note by way of background information that the respondent has continually been prescribing 80 mg of Oxycodone to this patient since 2007. 3. During the period 4 January 2012 to 5 June 2013, the respondent prescribed 952 tablets of Oxycodone 80 mg for this respondent. None of these appear to have been processed through the supported Medicare scheme. Accordingly, all were issued on private scripts. 4. There is no notation of any assessment of this patient or of any diagnosis which would justify the continuing prescription of this drug at this level, or indeed any level, for the period covered by the complaint. It is clear from the clinical records, meagre as they are, that this patient was dependent upon this drug. As conceded by the respondent, he had no authority to prescribe this medication. As conceded by the respondent, he ignored the exhortation from the PSU to obtain an authority for this patient. His explanation was that he was waiting for the patient's condition to improve. 5. In oral evidence, the respondent conceded that he was not helping this patient by continuing to prescribe Oxycodone for him at that level and that he was aware that the patient was dependent on Oxycodone. 6. The respondent discussed this patient in an interview with a representative of the Pharmaceutical Services Unit on 2 August 2013. In that interview, the respondent said that he was aware that the patient was on a methadone program and that he should have asked himself why the patient would require Oxycodone whilst on a methadone program. When asked why he continued to prescribe Oxycodone to a patient who he knew was drug-dependent he said that he was hoping that the patient would "get the message and detox himself, go to rehab, and he promised that he will do that." The respondent then conceded that there was a "big flaw" in that reasoning. At one stage in the interview, the respondent said that the patient's health was not good, but when asked about this he said that "No, he's okay, he's good man, no, he's healthy, he's working and he is some kind of construction worker, he has a family, three children, no, he's okay." The respondent also said that the patient had some lower back pain. The respondent was then asked what would be a normal dose of OxyContin for someone starting off for back pain and said that OxyContin 80 mg twice a day was "probably too much." It was then put to the respondent that the patient might be diverting some of the drugs because they were selling between $50 and $80 per tablet on the street. There is no record of any response from the respondent to this. Patient W 1. The respondent's clinical notes indicate that this patient first saw him on 6 November 2012. There is a notation that he was suffering from lower back pain, requested further medication, a discussion concerning analgesic and a CT scan. He was prescribed Endone 5 mg and referred for a CT scan of his lumbar spine. On 12 November, there is a notation that the lower back pain was settling well with Endone and that the patient was awaiting the result of the CT scan. Further Endone was prescribed. On 16 November 2012, there was a notation that the lower back pain was improving slowly and further Endone was prescribed. On 19 November, there is a notation of persistent lower back pain and that the analgesic was changed to "controlled release." A prescription was issued for OxyContin 10 mg. The last notation is 28 November, in which the CT scan of the lower back was discussed. The patient was commenced on Endep 10 mg nightly and further scripts were issued for Endep 10 mg and OxyContin 10 mg. 2. Presumably, as a result of an enquiry made to the PBS Prescription Shopping Program the respondent was advised on 11 December 2012 that this patient had been supplied by others with a number of drugs of addiction during the period 1 August to 31 October 2012. 3. A report from a radiologist relating to an examination conducted on 12 November 2012 concerning this patient showed a mild disc bulge with no nerve root impingement. 4. Dr Patterson said that there was no record in the notes of the respondent having conducted an appropriate assessment of the patient prior to prescribing Oxycodone. There was also no record of the respondent having sought specialist advice before prescribing Oxycodone. There was no enquiry noted of any previous investigations that this patient underwent including diagnosis and treatment. Furthermore, the respondent should have referred the patient to an addiction specialist or psychiatrist as soon as he became aware that he was taking regular doses of Oxycodone. There was no diagnosis noted when the results of the CT scan were available. There was no indication that the respondent had prescribed these drugs of addiction for this patient for any appropriate therapeutic purpose. Furthermore, the respondent should have been aware that this patient was addicted or drug dependent and should have sought an authority to prescribe these drugs. 5. Dr Patterson was critical of the respondent for failing to detect drug-seeking behaviour from this patient because it appeared from the notes that he was only attending the respondent to obtain prescriptions for a Schedule 8 drug. 6. In his statement, the respondent said that he was satisfied that the CT scan report demonstrated that the condition of the patient was genuine, he was justified in prescribing the drugs which were prescribed and that the dosage regime was consistent with therapeutic standards. He said that he saw the patient for a period of 22 days and then refused to see him further due to a suspicion that he may have been a doctor shopper. Immediately after this was confirmed, he declined to prescribe further drugs to this patient. 7. In his oral evidence, Dr Patterson maintained his criticism of the respondent's treatment of this patient, in particular, because there was no record made of any examination, and he did not understand why there would be a transition from Endone to OxyContin. He said it was difficult to reduce the dose of a slow release preparation. 8. Dr Patterson said that it would be difficult to interpret the results of the CT scan and whether there was a genuine cause for complaints of pain without having taken a full history concerning the circumstances of the onset of pain and the location of the pain. 9. We are comfortably satisfied that paragraphs (a) and (b) of the Complaint have been made out. We are not so satisfied with respect to paragraph (c) because, in his evidence, Dr Patterson conceded that it was not necessary to refer the patient to a specialist for treatment of his back condition before the CT scan report was available. We also are not comfortably satisfied that the Complainant has established that the patient should have been referred promptly for pain management and specialist drug addiction treatment, given the short period during which the patient attended on the respondent. The respondent's oral evidence 1. In the course of his oral evidence, the respondent made the following points: 1. He issued private scripts to patients from time to time because they were more expensive and this would act as a disincentive to the patients, although he conceded that he was able to so prescribe many more tablets than under the subsidised scheme. Furthermore, if he gave larger doses to patients by issuing private scripts, they would not need to see him so often. 2. He agreed that his prescribing patterns were seriously inappropriate but that he reduced the prescription of narcotics after his interview with the PSU. 3. At the time that he was prescribing narcotics, he was under pressure from some of his patients who were of the same ethnic background, presented themselves in the reception area and created a disturbance for other patients. By prescribing drugs which they were seeking, he got rid of them. In addition, he was taking the easy path even though he was prescribing drugs without authority or without referring the patients for specialist assistance. There were also time constraints on him in his busy practice. 4. He knew, at all times, that he needed to obtain an authority if patients were drug-dependent but did not know the details. In any event, he conceded that he had failed in complying with the Regulation, but then added "I failed because a lot of doctors were prescribing the same medicine for people." He was unable to explain how he knew this to be the case. 5. He said that he was a soft touch and a soft target for patients. 6. He invariably failed to make enquiries with prior treating general practitioners. 7. He was aware that Schedule 4 D drugs were highly likely to cause dependency if used for a long time and knew this at the time that he prescribed them, but there was no record of him telling the patients about this. 8. He was aware of the risks of prescribing Schedule 8 drugs over a long period. 9. Even though he was generally aware of the need to obtain an authority to prescribe Schedule 8 drugs, he did not think about the consequences for himself if he was found out. He acknowledged that there were consequences for a patient who was prescribed these drugs on a long-term basis which he described as continuing dependence both biologically and psychologically as well as socially. 10. He was unable to explain why he did not keep adequate and appropriate clinical records. 11. He acknowledged that he usually prescribed OxyContin at a strength of 80 mg to be taken twice daily. 12. He accepted that he had continued to feed the drug-dependency of patients and to extend their dependency. 13. He conceded that he had failed to conduct appropriate physical examinations, take an appropriate history, and to document any of these and that he had failed to record any treatment plan. 1. In a written statement and in the course of his oral evidence, the respondent said that he had made efforts to improve his knowledge, understanding and approach to the practice of medicine. He has successfully completed a course "Issues in General Practice Prescribing" through Monash University, a number of courses run through Avant Mutual Group with particular emphasis on the prescribing of drugs of addiction and has had the benefit of working with a supervisor appointed pursuant to interim orders issued by this Tribunal in March 2016. Furthermore, he has asserted that he has improved his standard of record keeping and that his clinical notes are now fully compliant. He now works in a group practice and no longer treats patients with drug-dependency. He said he has gained insight from his interaction with Dr Wright and states that he is cognisant of his shortcomings as revealed in the particulars of the complaints brought against him and has worked hard to redress them. 2. When asked in cross-examination why he did not obtain an authority to prescribe drugs of addiction even though he was aware of the need to do so, he said that he was not "fully serious" about this and that he did not think about the consequences for him if he was found out. Furthermore, he was not fully cognisant of the consequences for his patients. The respondent was unable to offer any explanation as to why he did not keep adequate records. Professional misconduct 1. The respondent conceded that he was guilty of professional misconduct as well as unsatisfactory professional conduct as both those expressions are defined in the National Law. Relevantly, the definitions are in the following terms; 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. We observe that in determining whether the respondent is guilty of professional misconduct we must be satisfied to the requisite standard, namely what has become known as the Briginshaw standard, that the relevant complaints and particulars have been established. We proceed on the basis that we must be comfortably satisfied, on the balance of probabilities, that the Complaints and the particulars have been made out. The respondent has formally conceded that a number of them have been made out. 2. We refer to the decision of HCCC v Dr Nemeth [2012] NSWMT 4 as reflecting the appropriate approach to be taken to the determination of these proceedings in accordance with principles well established by relevant authorities. At [48] and following the Tribunal said: The central issue to be determined is whether or not all the conduct admitted in respect of Complaint 1, when viewed separately as independent breaches of the appropriate standards or when taken together, amount to the more serious finding of professional misconduct. The question then becomes, if the conduct is perceived as a most basic breach of the standards such as to amount to professional misconduct, whether the severity of such would justify the doctor's suspension or cancellation of registration. In Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, Kirby P described the test for professional misconduct as follows. He said (at 200): Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner. Further, (at 201), Kirby P said: The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed. 1. In Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99 at [18] and [19], the Tribunal said: [18] The issue is whether, when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration: s 37 Medical Practice Act 1992, s 139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct based on the outcome. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public: s 2A (3) of the Act. [19] The "seriousness" of unsatisfactory professional conduct depends on the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. "Misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Priestley JA at [104]. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at [200]. 1. As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. 1. The mere recitation of the Complaints and the particulars found to have been established, coupled with the evidentiary material to which we have referred and the expert opinion of Dr Patterson in the context of the concessions made by the respondent are sufficient to justify a conclusion that in the aggregate the respondent is guilty of professional misconduct. 2. The professional misconduct of the respondent which we have found following his admissions and our conclusions concerning those matters which were contested is of a most serious kind. With respect to Complaint One, the respondent has conceded that he engaged in conduct that demonstrated that his knowledge, skill or judgement which he possessed and the care which he exercised in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This misconduct was not confined to a few cases. It extended to 26 patients over a considerable period of time. It persisted notwithstanding warnings received from the Pharmaceutical Services Unit. The respondent conceded that, in the bulk of the cases, he did not perform an appropriate medical assessment prior to issuing the scripts, he did not exercise responsible medical judgement as to whether it was appropriate to issue the scripts, he failed to refer the patients to a specialist for treatment, review or advice and he was aware that his conduct in prescribing drugs of addiction was contraindicated because of the likelihood of substance abuse. In effect, based on the evidence of the respondent himself, as well as the expert opinion of Dr Patterson, the respondent was in the same position as a drug supplier, dispensing drugs of addiction to persons who were, or might become, addicted and drug-dependent. In addition, as is clear from the expert opinion of Dr Patterson and as conceded by the respondent the fact that he prescribed Schedule 8 drugs in combination with a benzodiazepine created significant health risks for some of his patients. These included the possibility of respiratory depression with potentially fatal outcomes as well as the increased risk of benzodiazepine-dependence. 3. Furthermore, the respondent was aware that he required a relevant authority under the Poisons and Therapeutic Goods legislation to dispense such drugs, and that his misconduct was carried out in contumelious disregard for his lawful obligations. By reason of the matters referred to in Complaint Two, the respondent conceded that he had issued private scripts. Despite, and, relevantly, because of the respondent's inability to give any plausible explanation as to why he would do this, we infer that the private scripts were issued so that it was more likely that the respondent's misconduct would not come to the attention of the authorities. The misconduct of the respondent as we have described it, which involved him in engaging in the unlawful and inappropriate distribution of drugs of addiction was compounded by his failure to maintain adequate and proper medical records as set out in Schedule 2 to the Health Practitioner Regulation (NSW) Regulation, 2010 for each of the patients. 4. It is a trite observation that comprehensive record-keeping is essential to assist a medical practitioner in affording proper and appropriate treatment to patients. A history of reported symptoms, diagnoses, tests and procedures, medication, and referrals amongst other matters are necessary tools in the practice of medicine. It is important also that another medical practitioner who may be required to afford treatment to the patient, be able to become informed about the patient as quickly as possible by reference to existing medical records. A failure to keep and maintain necessary and appropriate records may not only constitute a breach of the statutory requirements referred to above, but may, in appropriate cases per se be characterised as constituting unsatisfactory professional conduct and professional misconduct, Protective orders 1. Although, by definition, a finding of professional misconduct would justify an order for suspension or cancellation of registration it does not necessarily follow that the Tribunal is bound to make such an order, and the consideration of the nature and extent of any consequential orders must be determined by reference to well-established principles. 2. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction, there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgment of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. The prevailing jurisprudence of this Tribunal in considering protective orders is that, assuming no other contrary matters, it will generally only be appropriate to cancel the registration of a medical practitioner if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant or indefinite period. In determining present fitness to practice medicine, it is useful to enquire whether there are any discernible reasons why the respondent engaged in the professional misconduct. In addition, such an enquiry may be useful in determining whether it is appropriate to craft any practice conditions or consider other relevant matters in response to the determination of any such reasons. 2. A good starting point is usually the opinion expressed by a psychiatrist whom the respondent has consulted. We have previously summarised the evidence of Dr Wright. We note that Dr Wright was unable to determine that the respondent was suffering from any underlying and contributory psychiatric impairment. Neither was the respondent suffering from any "underlying personality problem." He thought that there was "no evidence of any narcissistic tendency or antisocial behaviour." However, Dr Wright thought that the significant challenges which the respondent had faced in difficult circumstances in Afghanistan and in Pakistan had desensitised the respondent and he hypothesised that the resultant resilience and determination developed by the respondent made him resistant "to feedback from those in authority." 3. We assume from his reference to "resilience" and resistance to "feedback from those in authority" that Dr Wright was expressing the opinion that the respondent might not wholeheartedly embrace any lawful regime under which he was required to practice if it did not suit his predilection. We note from the evidence of Dr Wright, that he had been able to observe the respondent over a period of 13 months. Our understanding of his evidence is that the respondent only gradually gained insight into the fact that he may have misconducted himself, and that as at February 2016 any improvement remained "a work in progress." Based on this evidence we are not confident that the respondent currently has sufficient insight into the totality of his conduct which is at the heart of these proceedings. 4. We note further that Dr Wright identified significant deficits in the clinical knowledge of the respondent in dealing with the treatment of chronic pain, long-term dependence on narcotics and difficult patients. Whilst Dr Wright thought that the respondent would be able to practice medicine safely, this opinion was expressed in the context of the imposition of a number of practice conditions, the nature and extent of which, in our opinion, are indicative that the respondent is not currently able to practice medicine safely. 5. In our opinion, a requirement that a medical practitioner be the subject of supervision, mentoring and work only in a group practice with substantial restrictions on the type of medicine that he or she might practice does not sit comfortably with a medical practitioner who is a general practitioner and expected by patients to be able to deal safely with a wide range of conditions. 6. We have also sought to discern some reason for his conduct from the evidence of the respondent. We have previously summarised his evidence, and we can only describe him as an enigmatic personality. Either he was aware of the nature and extent of his misconduct and did not care about the consequences, as he seems to suggest, or, in some respects, he did not want to know that his misconduct was entirely inappropriate in all the circumstances. Either scenario casts doubt on the ability of the respondent to practice safe medicine. 7. When these proceedings were adjourned in March 2016 we imposed practice conditions upon the respondent pending the final determination of the proceedings. Pursuant to those conditions, the respondent has joined a group practice, has undertaken supervision and his clinical records have been the subject of an audit. Evidence made available to the Tribunal is that the respondent is performing satisfactorily within the group practice environment, and that nothing adverse has been discovered in the course of the supervision and the audit of his clinical records. In addition, he successfully completed the Monash University Course which we have earlier described on 13 July 2015, in November 2015 he completed a course dealing with pain management, and he has undertaken additional training including problems involved in prescribing drugs of dependence, dealing with patients who are addicted and medical record keeping. It was said on his behalf that, based on this evidence, the respondent should be made the subject of a reprimand only, and that he should be allowed to continue to practice medicine albeit with conditions which precluded him from prescribing drugs of addiction, required him to practice in a group practice, restricted the number of patients treated by him, required him to practice under supervision and to be subject to a medical records audit. 8. For reasons which we have earlier advanced, we have concerns about the level and quality of the respondent's insight into his conduct. Furthermore, such explanation as is available to us as to why the respondent engaged in the course of conduct which constituted his professional misconduct as found does not satisfy us that, in some way, he has sufficiently rehabilitated so that we can be comfortable that he is unlikely to offend again. His "resilient" character and the apparent possible lack of concern for authority are matters which we find troubling. Furthermore, the misconduct found is indicative of either a disregard for or complete ignorance of a number of clinical matters which are fundamental to the safe and proper practice of medicine. The respondent willingly prescribed drugs of addiction to persons whom he knew to be drug-dependent, or might become so, and he prescribed them in quantities which were fundamentally inappropriate, and he prescribed them together with other drugs which created a significant risk to the health of the patients involved. The respondent has failed to practice safe medicine in a deliberate fashion extending to a large number of patients over a significant period of time with reckless indifference as to the outcome, and contumelious disregard for his statutory obligations. 9. The burden of demonstrating that the respondent has gained the necessary insight, is a changed practitioner and now practices medicine in a safe manner without any of the failings which have been identified falls on him, albeit to the usual civil standard. That burden has not been discharged in the circumstances of these proceedings. 10. We are also mindful that, as Walsh JA said in the New South Wales Court of Appeal in Ex parte Tziniolis : Re the Medical Practitioners Act (1996) 67 SR (NSW) 448 at 461: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and attitude it must require clear proof to show that some years later he has established himself as a different man. 1. Accordingly, we are unable to conclude that the respondent is currently able to practise medicine safely, nor that he is likely to be able to do so in the near future on the basis of the evidence available to us. 2. There are, of course, other matters which need to be taken into account in assessing the appropriate protective orders that should be made in the circumstances of these proceedings. We discuss them in the context of the most serious misconduct of the respondent, which we have described in some detail. The orders which we make must provide some deterrence to this respondent lest he contemplate further misconduct of this kind, or indeed any other conduct of an adverse kind. The orders must also provide some deterrence to other health practitioners lest they contemplate misconduct of the kind in which the respondent engaged. And finally, the community confidence in the high standards of the medical profession must be maintained. A reprimand, coupled with practice conditions of the kind contemplated, would fall so far short of any appropriate protective order as to fail community expectations and our statutory obligations to apply the Act in a manner consistent with its purpose and objects, namely one of promoting the safety of the public in the circumstances of, inter alia, the practise of medicine. 3. In our opinion, the only appropriate protective order which can be justified in all the circumstances of these proceedings is one which involves the cancellation of the registration of the respondent, and we shall do so, accordingly. 4. By Section 149C(7) of the National Law, we are empowered to provide that an application for review of the order under Division 8 may not be made until after a specified time. In all the circumstances, we are of the opinion that a period of 24 months is appropriate, as allowing for the respondent to engage in such remedial processes as he may determine before applying for reregistration, if he desires to do so. Costs 1. The complainant sought an order for costs. This is a costs jurisdiction and costs normally follow the event. The respondent acknowledged that there was no argument available to him which would displace the making of a costs order, and we shall do so. Orders 1. We make the following orders consequent upon the findings of professional misconduct which we have made: 1. The registration of the respondent as a medical practitioner is cancelled with effect 7 days from this date. 2. Pursuant to section 149C(7) of the National Law, an application for review of these orders is not to be made for a period of 24 months from this date. 3. The respondent is to pay the costs of the complainant assessed in default of agreement. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2016