Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Guard [2016] NSWCATOD 164 Hearing dates: 15, 16 and 19 December 2016 Date of orders: 19 December 2016 Decision date: 19 December 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Dr K Keenan, Professional Member Dr H Wilson, Professional Member Prof P Macneill, General Member Decision: (1) The respondent is found guilty of professional misconduct (2) Practice conditions imposed (3) The respondent is to pay the costs of the complainant Catchwords: MEDICAL PRACTITIONER - failure to keep proper records - failure to obtain authority for prescription of drugs of addiction - finding of professional misconduct - reprimand and practice conditions imposed - costs order Legislation Cited: Health Care Complaints Act, 1993, ss39, 90B Health Practitioner Regulation (New South Wales) Regulation 2010, Clause 7, Schedule 2 Clauses 1, 2, 3 Health Practitioner Regulation National Law (NSW), ss 125, 127, 139B, 145A Poisons and Therapeutic Goods Act, 1966, s28 Poisons and Therapeutic Goods Regulation, Cls 111, 112, 119 Cases Cited: HCCC v Do [2014] NSWCA 307 HCCC v Dr Nemeth [2012] NSWMT 4 Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Edwina Valmai Guard (Respondent) Representation: Counsel: P Dwyer (Complainant) C Jackson (Respondent) Solicitors Health Care Complaints Commission (Complainant) Avant Law (Respondent) File Number(s): 1620074 Publication restriction: Non publication order extending to the patients of the respondent or any material which might tend to identify any patient REASONS FOR DECISION 1. These proceedings are constituted by an amended complaint. The complainant is the Health Care Complaints Commission and the respondent is Dr Edwina Valmai Guard. At the conclusion of a three day hearing, we found that certain elements of the complaints had not been established, that some had been established to the relevant standard, and that in the aggregate they constituted professional misconduct. Consequent upon this finding, we made certain orders which reflected a consensus which had been reached between the parties. These Reasons for Decision explain the finding of professional misconduct which we have made and also explain why we have adopted the proposed agreed orders suggested by the parties. 2. Relevantly, the Amended Complaint is in the following terms: 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 Edwina Valmai Guard ("the Practitioner"), being a medical practitioner registered under the National Law: COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the Practitioner has: i. engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a Practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The Practitioner was first registered in New South Wales in 1996. In 2002 the Practitioner commenced general practice and established (a general practice). PARTICULARS OF COMPLAINT ONE Patient A 1. The Practitioner prescribed hydromorphone to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. without having an authority under s28(2) of the Poisons and Therapeutic Goods Act 1966 (PTGA); b. without adequate clinical management in that she failed to: (i) regularly assess Patient A's pain relief in response to hydromorphone; (ii) make proper enquiries of the patient about side effects. Patient B 2. The Practitioner prescribed hydromorphone to Patient B on the dates and in the quantities set out in the schedule attached and marked B: a. without having an authority under s28(2) of the PTGA; b. without proper calculation of the appropriate dose; c. without liaising with or referring Patient B to other practitioners for advice on treatment including: (i) a specialist pain management service; (ii) a psychologist or counsellor. Patient C 3. The Practitioner prescribed hydromorphone to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. in an inappropriate combination with oxycodone; b. in an inappropriate combination with diazepam; c. in an inappropriate combination with temazepam; d. without assessing the severity of Patient C's Chronic Obstructive Pulmonary Disease at any time; e. without having an authority under s28(2) of the PTGA; f. without liaising with or referring Patient C to a specialist pain management service. 4. The Practitioner prescribed diazepam to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. for an inappropriate duration; b. in an inappropriate combination with nitrazepam; c. in an inappropriate combination with temazepam. 5. The Practitioner prescribed nitrazepam to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. for an inappropriate duration; b. in an inappropriate combination with diazepam. 6. The Practitioner prescribed temazepam to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. for an inappropriate duration; b. in an inappropriate combination with diazepam. Patient D 7. The Practitioner prescribed hydromorphone to Patient D on the dates and in the quantities set out in the schedule attached and marked D: a. without having an authority under s28(2) of the PTGA; b. in an inappropriate combination with oxycodone; c. without liaising with or referring Patient D to a specialist pain management service. Patient E 8. The Practitioner prescribed oxycodone to Patient E on the dates and in the quantities set out in the schedule attached and marked E: a. when she knew that Patient E was on the Opioid Treatment Program; b. without assessing: (i) Patient E's pain; (ii) whether oxycodone was the most appropriate type of medication; c. without having an authority under s28(2) of the PTGA; d. without seeking advice from: (i) the dentist performing the tooth extraction for Patient E; (ii) a pain management specialist; (iii) a drug and alcohol physician; e. without considering alternative and more appropriate analgesia for Patient E. Patient F 9. The Practitioner prescribed diazepam to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a. when she knew or ought to have known that Patient F was on the Opioid Treatment Program; b. when she knew or ought to have known that Patient F was drug dependent and at risk of abusing diazepam; c. without taking a comprehensive medical history including a history of drug abuse; d. without making enquiries of any prior treating practitioners in relation to Patient F's medical history and present health status; e. without referring Patient F to an addiction specialist; f. without a therapeutic purpose; g. in an inappropriate combination with endone. 10. The Practitioner prescribed endone to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a. when she knew or ought to have known that Patient F was on the Opioid Treatment Program; b. when she knew or ought to have known that Patient F was drug dependent and at risk of abusing endone; c. without a therapeutic purpose; d. without discussing potential side-effects with patient F; e. for an inappropriate duration; f. in an inappropriate dose; g. in an inappropriate combination with diazepam; Patient G 11. The Practitioner prescribed nitrazepam to Patient G on the dates and in the quantities set out in the schedule attached and marked G: a. without discussing potential risk of dependence with Patient G; b. without implementing or attempting to implement any treatment strategy to reduce Patient G's dose; c. without assessing Patient G for contra-indications including: (i) Chronic Obstructive Airways Disease; (ii) depression; (iii) psychosis; d. in combination with an anti-depressant, mirtazepine; e. without seeking assistance from or referring Patient G to a: (i) rheumatologist; (ii) pain specialist; (iii) addiction specialist; (iv) psychiatrist; (v) geriatrician. Patient H 12. The Practitioner prescribed alprazolam to Patient H on the dates and in the quantities set out in the schedule attached and marked H: a. for a purpose that did not accord with recognised therapeutic standards; b. without attempting to establish a firm diagnosis; c. without following up with Patient H in relation to counselling sessions with a clinical psychologist in late 2011; d. without considering prescribing an alternative anti-depressant to paroxetine for Patient H; e. without reviewing the combination and type of Patient H's medications; f. without making reasonable attempts to ensure Patient H undertook psychological counselling after late 2011; g. without making reasonable attempts to ensure Patient H consulted with a psychiatrist; h. without seeking the assistance of a drug and alcohol specialist. Patient I 13. The Practitioner prescribed diazepam to Patient I on the dates and in the quantities set out in the schedule attached and marked I: a. at an inappropriate frequency; b. for an inappropriate purpose; c. for an inappropriate duration; d. without seeking any advice from a psychiatrist in relation to long-term prescribing of diazepam to Patient I; e. without seeking advice from a drug and alcohol addiction specialist. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(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. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO 1. The Practitioner wrote prescriptions for latanoprost eye drops in the name of Patient I on the dates and quantities set out in the schedule attached and marked I2 for the Practitioner's own use and/or for use in the Practitioner's practice. 2. The Practitioner wrote prescriptions for carbomer eye gel in the name of Patient I on the dates and quantities set out in the schedule attached and marked I2 for the practitioner's own use and/or for use in the practitioner's practice. 3. In November 2012 the Practitioner failed to: a. give written notice to the Director-General of the loss of her drug register for the period 1 November 2010 to 1 November 2012 and the facts and circumstances of the loss, contrary to clause 119(a) of the PTGR; b. make an accurate inventory of all drugs of addiction held on the premises and enter, in a new drug register, the particulars of those drugs, contrary to clause 119(b) of the PTGR. 4. Between 1 November 2012 and 30 May 2013, the Practitioner failed to keep a drug register in the appropriate form, contrary to clauses 111(2)(a)(b) and 112(2) of the PTGR in that: a. the register did not contain consecutively numbered pages; b. the register was not bound; c. each entry in the register was not dated and signed. COMPLAINT THREE Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) of the National Law in that she has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 ("the Regulation"). Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND FOR COMPLAINT THREE The background for Complaint One is repeated and relied upon. PARTICULARS FOR COMPLAINT THREE Patient A 1. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient A's records: a. did not include sufficient information concerning Patient A's case to allow another medical practitioner to continue management of Patient A's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. did not include adequate particulars of clinical opinion reached by the Practitioner, contrary to Schedule 2 clause 1(2)(b) of the Regulation; c. contained the abbreviations or short-hand notations "Rx S/L and/or "Rx S/C" that are not generally understood in the medical community, contrary to Schedule 2 clause 3(1) of the Regulation; d. were inaccurate in that they referred to a "frozen left shoulder" instead of "frozen right shoulder" on: (i) 13 July 2012; (ii) 5 October 2012; (iii) 28 December 2012; (iv) 18 March 2013; (v) 9 October 2013. Patient B 2. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient B's records: a. did not include sufficient information concerning Patient B's case to allow another medical practitioner to continue management of Patient B's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. contained the abbreviations or short-hand notations "Rx S/L and/or "Rx S/C" that are not generally understood in the medical community, contrary to Schedule 2 clause 3(1) of the Regulation; c. lacked information relevant to Patient B's treatment, including, records of Patient B's pain levels in response to changes in medication, contrary to Schedule 2 clause 3 of the Regulation. Patient C 3. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient C's records: a. did not include sufficient information concerning Patient C's case to allow another medical practitioner to continue management of Patient C's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. contained the abbreviations or short-hand notations "Rx S/L and/or "Rx S/C" that are not generally understood in the medical community, contrary to Schedule 2 clause 3(1) of the Regulation; c. lacked information relevant to Patient C's treatment including: (i) records of Patient C's pain levels in response to changes in medication, contrary to Schedule 2 clause 1(4); (ii) the reason hydromorphine was prescribed to Patient C, contrary to Schedule 2 clauses 1(3) of the Regulation; (iii) the reason diazepam was prescribed to Patient C, contrary to Schedule 2 clauses 1(3) of the Regulation; (iv) the reason nitrazepam was prescribed to Patient C, contrary to Schedule 2 clauses 1(3) of the Regulation; (v) the reason temazepam was prescribed to Patient C, contrary to Schedule 2 clauses 1(3) of the Regulation. Patient D 4. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient D's records: a. did not include sufficient information concerning Patient D's case to allow another medical practitioner to continue management of Patient D's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. contained the abbreviations or short-hand notations "Rx S/L and/or "Rx S/C" that are not generally understood in the medical community, contrary to Schedule 2 clause 3(1) of the Regulation; Patient E 5. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient E's records: a. did not include sufficient information concerning Patient E's case to allow another medical practitioner to continue management of Patient E's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. did not contain sufficient detail appropriate to Patient E's case, contrary to Schedule 2 clause 2(1) of the Regulation; c. did not include sufficient particulars of oxycodone prescribed including dose and intervals between doses, contrary to clause 1(4)(d) of the Regulation. Patient F 6. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient F's records: a. did not include sufficient information concerning Patient F's case to allow another medical practitioner to continue management of Patient F's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. did not include sufficient information relevant to Patient F's diagnosis or treatment including: (i) results of any clinical examinations, contrary to Schedule 2 clause 1(2)(a); Patient G 7. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient G's records: a. did not include sufficient information concerning Patient G's case to allow another medical practitioner to continue management of Patient G's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. did not include sufficient information relevant to Patient G's diagnosis or treatment including: (i) results of any clinical examinations, contrary to Schedule 2 clause 1(2)(a); (ii) reasons for prescribing and/or continuing to prescribe nitrazepam contrary to Schedule 2 clause 1(3) of the Regulation. Patient H 8. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient H's records: a. did not include sufficient information concerning Patient H's case to allow another medical practitioner to continue management of Patient H's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. did not include sufficient information relevant to Patient H's diagnosis or treatment including: (i) results of any clinical examinations, contrary to Schedule 2 clause 1(2)(a); (ii) reasons for prescribing and/or continuing to prescribe nitrazepam, contrary to Schedule 2 clause 1(3) of the Regulation. Patient I 9. The Practitioner contravened clause 7 and Schedule 2 Clauses 1 and 2 of the Regulation in that Patient I's records: a. did not include sufficient information concerning Patient I's case to allow another medical practitioner to continue management of Patient I's case, contrary to Schedule 2 clause 2(2) of the Regulation; b. did not include sufficient information relevant to Patient I's diagnosis or treatment including: (i) results of any clinical examinations, contrary to Schedule 2 clause 1(2)(a); (ii) reasons for prescribing and/or continuing to prescribe diazepam contrary to Schedule 2 clause 1(3) of the Regulation. COMPLAINT FOUR Has been guilty of professional misconduct within the meaning of 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 her registration; and/or (ii) has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. BACKGROUND FOR COMPLAINT FOUR The background for Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT FOUR The particulars of Complaint One, Two and Three are repeated and relied upon both individually and cumulatively. 1. It will be seen that, in essence, there are five areas of conduct which are covered by the various complaints. These are: 1. The inappropriate prescribing of certain drugs of addiction. 2. The prescribing of certain drugs of addiction without authority under section 28 (2) of the Therapeutic Goods Act ("PTGA"). 3. The prescribing of a drug of addiction and eye medication in the name of the patient which were intended for her own use. 4. The failure to keep a drug register in appropriate form as required by the Regulations made under the PTGA. 5. The failure to make adequate clinical notes and records contrary to statute. 1. During the course of the hearing, we received a large volume of documentary material, documentary and oral evidence was given by experts retained by both parties, and the respondent gave evidence in addition to documentary material which had been filed on her behalf. We shall refer to this evidence where relevant in the course of these reasons for decision. 2. We now come to deal with each of the discrete areas of conduct covered by the complaints which we have previously identified. The inappropriate prescribing of certain drugs of addiction 1. The complainant retained Dr A.D.W. Patterson, an experienced general practitioner to provide it with an expert report concerning these matters which was compiled by him based on the clinical notes and records of the respondent. As will become clear, some of these notes and records were so bereft of detail as to make it very difficult for Dr Patterson to make any informed assessment of the clinical care provided by the respondent to the patients who are the subject of these proceedings. Subsequent to the provision of his expert report, Dr Patterson was provided with detailed responses made by the respondent which assisted in evaluating whether and to what extent the respondent had misconducted herself as alleged. These responses went some way to allaying the concerns of Dr Patterson. During the course of the hearing, Dr Patterson was given the opportunity to question the respondent who, on oath, answered questions which he posed to her concerning the treatment which she had afforded to each of the patients concerned and provided her with an opportunity of explaining the particular circumstances of each of the patients. At the conclusion of these processes, Dr Patterson reviewed the opinions previously expressed by him and informed the Tribunal that he no longer concluded that the conduct of the respondent was such that it was significantly below the relevant standard which applies when considering whether the respondent was guilty of unsatisfactory professional conduct or professional misconduct as required by the Health Practitioner Regulation National Law ("the Act"). We shall discuss the provisions of the Act later in these reasons for decision. It is sufficient for present purposes to note that as a result of these processes adopted during the course of the hearing, there was no longer available to the complainant any evidence which would support any finding of misconduct in connection with the inappropriate prescribing of these drugs of addiction. On this basis, as properly conceded by the complainant, those complaints and particulars which are relevant to this matter must be dismissed, and we do so accordingly. The prescribing of certain drugs of addiction without authority under section 28 (2) of the Poisons and Therapeutic Goods Act ("PTGA") 1. We set out below the relevant provisions of section 28: 28 Prohibition on prescribing drugs of addiction in certain cases (1) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to any person a type A drug of addiction. (2) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe or supply a type B drug of addiction: (a) for continuous therapeutic use by a person for a period exceeding 2 months, or (b) for a period that, together with any other period for which that drug or any other type B drug of addiction has been prescribed or supplied by the medical practitioner or nurse practitioner or has, to the medical practitioner's or nurse practitioner's knowledge, been prescribed or supplied by any other medical practitioner or nurse practitioner, would result in that drug, or that drug together with any other such drug, being prescribed or supplied for continuous therapeutic use for a period exceeding 2 months. (3) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction. (4) For the purposes of this section, "the proper authority" means an authority under section 29 that authorises the medical practitioner or nurse practitioner to prescribe or supply the drug of addiction to the person concerned. (5) A drug of addiction may be prescribed for or supplied to a person by a medical practitioner or nurse practitioner without the proper authority if the medical practitioner or nurse practitioner is authorised by the regulations to prescribe or supply the drug without an authority under section 29. (6) In this section: "type A drug of addiction" means a drug of addiction prescribed by the regulations under this section as a type A drug of addiction. "type B drug of addiction" means a drug of addiction prescribed by the regulations under this section as a type B drug of addiction. "type C drug of addiction" means any drug of addiction (other than a type A drug of addiction). 1. The respondent formally conceded that she had prescribed relevant drugs without the required authority and, to this extent, the complaints and particulars based on this failure were established. We are comfortably satisfied on the balance of probabilities, which is the relevant standard, that so much of the complaints and particulars which are based on this general allegation are established on the basis of the written concession of the respondent and other evidentiary documentary material. The prescribing of a drug of addiction and eye medication in the name of the patient which were intended for her own use 1. The respondent denied that she prescribed Endone for her own use. She said that this medication was for use in her doctor's bag, and that she no longer obtained such medication through the issue of a prescription, but has established a direct account with a supplier. We accept her denial and we find the relevant complaint and particular has not been made out to the requisite standard. The respondent accepted that she had inadvertently obtained eye medication for use otherwise in her practice on a prescription issued in the name of a patient. She said this was a genuine error. Such an error either alone or in the aggregate would never constitute unsatisfactory professional conduct, and we dismiss such part of the complaint and particulars which are directed to this matter. The failure to keep a drug register in appropriate form and notify its loss as required by the Regulations made under the PTGA 1. The complaints and particulars are based on a breach of Regulations 111, 112 and 119 of the Poisons and Therapeutic Goods Regulation, which are in the following terms: 111 Drug registers to be kept (1) A person who has possession of drugs of addiction at any place must keep a separate register (a "drug register" ) at that place. (2) A drug register is to be in the form of a book: (a) that contains consecutively numbered pages, and (b) that is so bound that the pages cannot be removed or replaced without trace, and (c) that contains provision on each page for the inclusion of the particulars required to be entered in the book. (3) Separate pages of the register must be used for each drug of addiction, and for each form and strength of the drug. (4) The Director-General may from time to time approve the keeping of a drug register in any other form. 112 Entries in drug registers (1) On the day on which a person manufactures, receives, supplies, administers or uses a drug of addiction at any place, the person must enter in the drug register for that place such of the following details as are relevant to the transaction: (a) the quantity of the drug manufactured, received, supplied, administered or used, (b) the name and address of the person to, from, or by, whom the drug was manufactured, received, supplied, administered or used, (c) in the case of a drug that has been administered to an animal or supplied for the treatment of an animal, the species of animal and the name and address of the animal's owner, (d) in the case of a drug that is supplied or administered on prescription: (i) the prescription reference number, and (ii) the name of the authorised practitioner by whom the prescription was issued, (e) in the case of a drug that has been administered to a patient, the name of the authorised practitioner (other than a veterinary practitioner) by whom, or under whose direct personal supervision, the drug was administered, (f) in the case of a drug that has been administered to an animal, the name of the veterinary practitioner by whom, or under whose direct personal supervision, the drug was administered, (g) in the case of a drug that has been administered by a person authorised to do so by an authority under Part 8, details of the circumstances requiring administration of the drug, (h) in the case of a drug that has been used by a person who is in charge of a laboratory, or is an analyst, the purpose for which the drug was used, (i) the quantity of drugs of addiction of that kind held at that place after the transaction takes place, (j) any other details approved by the Director-General. (2) Each entry in a drug register must be dated and signed by the person by whom it is made. (3) The Director-General may, by order in writing, exempt any person or drug of addiction, or any class of persons or drugs of addiction, from any or all of the requirements of this clause. (4) Such an exemption may be given unconditionally or subject to conditions. 119 Loss or destruction of registers Immediately after a drug register (including a ward register) is lost or destroyed, the person responsible for keeping the register: (a) must give written notice to the Director-General of that fact and of the circumstances of the loss or destruction, and (b) must make an accurate inventory of all drugs of addiction held at the premises concerned and enter, in a new drug register, the particulars of the drugs so held. 1. The respondent conceded that she had breached the relevant Regulations as alleged in particulars 5 and 6 of complaint 2 and that these breaches constituted unsatisfactory professional conduct. We are comfortably satisfied that they have been established to the requisite standard. The failure to make adequate clinical notes and records contrary to statute 1. The complaints and particulars are directed to a breach of the Health Practitioner National Law Regulation. Namely: SCHEDULE 2 – Records kept by medical practitioners and medical corporations in relation to patients 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 1A Record of partners of patients being treated for chlamydia (1) A reference in this Schedule and clause 7 (1) of this Regulation to a patient includes a reference to a partner of the patient if the patient is being treated for chlamydia and that treatment includes the patient and the partner being prescribed or supplied azithromycin for the treatment of chlamydia. For that purpose, the name and email address or mobile phone number of the partner is sufficient information to identify the partner. (2) In this clause: partner of a patient includes any of the following: (a) the patient's spouse, (b) the patient's de facto partner, (c) a person with whom the patient is or was in a sexual relationship. (3) This clause ceases to have effect on 1 January 2018. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if: (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the medical practitioner ensures the record is made and kept in accordance with this Schedule. 1. In general terms, the respondent conceded that she was in breach of these Regulations, although she did not concede such a breach in every case because the totality of the clinical records had not been made the subject of the proceedings and had not been produced. Nevertheless, on the evidence of Dr Patterson, and from our own reading of the clinical notes kept by the respondent which are the subject of these proceedings, we are comfortably satisfied that the relevant complaints and particulars have been established. Some of the notes are illegible, and some are so brief as to be meaningless. Some background information concerning the respondent, her practice and these complaints 1. The respondent obtained her tertiary medical qualifications in New Zealand in 1995. She became conditionally registered as an intern in New South Wales in 1996 and obtained general registration as a medical practitioner in January 1997. During 1996 the respondent worked as an intern at Westmead Hospital and Blacktown Hospital in the areas of plastic surgery, accident and emergency medicine, general and colorectal surgery and general medicine. From 1997 to 2003, the respondent worked as a registrar, medical officer, senior resident medical officer and general practice registrar in a number of positions in the Sydney area. In 2002, she commenced working in the Mid Coast NSW hinterland area in a number of positions before commencing her own general practice in a rural location within that area in November 2002. The respondent has continued working in that general practice, and was so working when the events which are the subject of these proceedings occurred. 2. The respondent is the only full-time general practitioner in the local area in which she practices. There is a population of around 2500, and the respondent currently has about 2000 patients on her books. The area is described as having a low socio-economic demography. She estimates that about 99% of her patients are in receipt of some form of government income and are in possession of a health care card. There is a local indigenous population. About 150 of her patients are in receipt of opiate replacement therapy. The practice bulk bills, otherwise most of her patients would be deprived of medical care. In general terms, their financial status is such that most patients are unable to pay for private specialist referral services. 3. At the time when these complaints arose, the respondent was routinely seeing in excess of 60 patients per day. Whilst she endeavoured to arrange her patients by appointment, a cohort of her patients were habituated to walking into the practice when medical treatment was required for them or their children. The practice employs a triage and other nursing staff as well as administrative staff. As a result of initiatives taken by the respondent, there is now a visiting psychologist in the area as well as visiting pathology services. Through her practice, the respondent also provides a visiting physiotherapist, psychiatric nurse practitioner and community support worker. 4. We have been provided with a number of references furnished in support of the respondent. They are to the effect that she is a hard-working, genuine and competent general practitioner described as a: ..trustworthy, open and honest individual and an empathetic and ethical medical practitioner. She has a great sense of social and community duty that benefits her patients. Dr Guard practices evidence-based medicine, and is thoroughly reflective with a strong experimental skill set. She manages her patients confidently, competently and compassionately. (provided by an experienced general practitioner). 1. The respondent has further been described as being: …an active member of the local community organising many projects for the benefit of the town's residents. She has, for many years put on the Children's Christmas Party where every child receives a wrapped gift. She has been an active member of the local Lions Club and through them coordinated a free community Christmas lunch on Christmas Day. She also sponsors Pilates and yoga classes in the town. She is an active member of an animal rescue organisation that cares for and rehomes many animals each year. Dr Guard has put a lot of time and care into this community. (provided by a local non-medical health practitioner). 1. As a result of these complaints, the respondent has made a concerted effort to reduce the number of patients seen by her each day. This will allow her to make proper clinical notes. Furthermore, she has taken active steps to ensure that she applies for and receives an authority under the TPGA, wherever needed, and that her drug register is appropriately maintained and kept in a safe place. During the course of the proceedings, we had an opportunity of engaging in dialogue with the respondent, and we are persuaded that the respondent has expressed contrition for what has occurred, is genuinely remorseful, and has taken and will continue to take positive steps to avoid any further problems of the kind which has given rise to these proceedings. In making this assessment, we are conscious that the practice of the respondent is subject to challenging and difficult circumstances because of the characteristics of the patients, to which we have earlier made brief reference. 2. In terms of the failure to obtain the required authorities under the PTGA, the respondent candidly said that she was unaware of such a requirement. As we have previously indicated, she is now fully compliant. Whilst we accept what the respondent says, we find it concerning that a practitioner who has had extensive experience working within the public hospital system in New South Wales and as a general practitioner within other practices should not have been exposed to the requirement to seek authorities is required by the PTGA. 3. The respondent also candidly conceded that she did not keep a drug register which was compliant with the Regulations. She said that she should have complied, and had "no excuse for not doing so." 4. With respect to the state of her clinical notes, the respondent said: I accept that my medical record keeping does not comply with the Regulations in various respects, and the legibility of my handwriting is an issue. I accept that much more detail with respect to clinical decisions, reasons for prescribing medications and treatment plans should have been provided. 1. For completeness, we note that the respondent has previously come to the attention of the Medical Council of NSW and was the subject of a performance assessment conducted in July 2014. The assessors noted that the respondent: ..displayed a high level of competence in her communication skills, physical examination, clinical judgement and advice. She has a thorough and well-organised approach to her consultations… She appears to approach these patients with respect and empathy and demonstrates good clinical skills and medical knowledge. In the course of the assessment, the records of the respondent were examined. They were found to be "adequate", but with room for improvement. Unsatisfactory professional conduct or professional misconduct? 1. The respondent conceded that in the aggregate, the breaches of the complaints and particulars which she had admitted constituted unsatisfactory professional conduct. The complainant submitted that, in the aggregate, they should be characterised as professional misconduct, and this was ultimately the greatest area of controversy between the parties. Both of these 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 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. …. 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]. 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 determining factor as to whether conduct is to be characterised as professional misconduct or unsatisfactory professional conduct is whether either alone or in the aggregate suspension or cancellation of registration is warranted, even though it does not necessarily follow that the Tribunal is bound to make such an order. It is instructive therefore to have regard to authority concerning the factors pertaining to and the circumstances in which suspension or cancellation of registration would fall for consideration. This involves in turn a consideration of the jurisdiction and powers of this Tribunal to order suspension or cancellation as part of the armoury of available protective orders. 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. Accordingly, in determining whether the conduct of the respondent in these proceedings would justify an order for suspension or cancellation of registration for the purpose of characterising the conduct in terms of section 139E of the Act, we take into account not only the misconduct itself, but also the need to deter the respondent and other practitioners and to uphold the integrity of the profession in the eyes of the public. This leads us to a consideration of the misconduct of the respondent. It involves matters which we regard as being of a most serious kind. As has been referred to in Spicer, considered above, great trust is placed in the medical profession in the administration and management of the prescription of drugs of addiction. This trust extends not only to the circumstances in which these drugs are prescribed, which are not relevant in these proceedings, but significantly to the obtaining of the required statutory authority and the keeping and maintaining of the required statutory records. It is the duty of every medical practitioner to ensure that he or she is familiar with the statutory matrix which applies to the practice of medicine. Ignorance of a requirement reflects a failure to make the necessary enquiries to ensure compliance with this duty 2. Significantly, also, the legislature has seen fit to create a statutory regime requiring the making and maintaining of clinical records. The benefits of compliance are obvious, as was acknowledged by the respondent. They provide an aide memoir to the practitioner to facilitate the creation and implementation of treatment and a treatment plan, and enable others who might require access to have some comprehension of the circumstances pertaining to the patient. The respondent did not suggest that she was ignorant of these requirements, but that the exigencies of her practice precluded her from complying. Again, it is the obligation of the practitioner to organise his or her practice so as to enable compliance with requirements of this kind. Taking on a workload, however needed and however well-meaning which does not allow sufficient time for adequate creation of records is contraindicated. 3. In the exercise of the value judgement which must be undertaken in determining whether the misconduct is of such a kind as to justify an order for suspension or cancellation of registration, having regard to the purpose of such an order, we regard the nature and extent of the misconduct as being serious and sufficiently serious to warrant, in appropriate cases, suspension or cancellation. Accordingly, we conclude that the conduct of the respondent as set out in the complaints and particulars which we have found to have been proven (much of it admitted) constitutes professional misconduct, and we so find. Protective orders 1. We have already noted that the finding of professional misconduct does not necessarily result in suspension or cancellation of registration. The determination of the appropriate protective orders requires a consideration of all the circumstances pertaining to the respondent and her conduct. There is absolutely no indication that the misconduct of the respondent which we have found would justify in any way protective measures of this kind. Fortunately, it is not necessary for us to examine in any detail the appropriate protective orders that should be made. They were canvassed with the parties during the course of submissions leading to the parties reaching consensus about the appropriate orders. We agree that the orders proposed by the parties are appropriate in the circumstances of these proceedings and the orders that we shall make will reflect this consensus. Costs 1. This is a costs jurisdiction and costs normally follow the event. The complainant sought an order for costs and the respondent, although not consenting, made no submissions in opposition to such an order. We shall make a costs order accordingly. Orders 1. We confirm having made the following orders on 19 December 2016 pursuant to the finding of professional misconduct which we made on that date. 1. The respondent is reprimanded. 2. The following practice conditions are imposed on the registration of respondent. 1. To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit is to be held within 6 months from the date of the decision and subsequently as required by the Council. 2. The auditor(s) is to assess her compliance with good medical record keeping standards and legislative requirements and compliance with conditions. 1. To nominate a registered experienced general practitioner to act as her professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each meeting the practitioner is to include discussion of: medical record-keeping; time management; patient numbers; difficult patients; compliance with legislative requirements; 2. To authorise the Medical Council of NSW to provide nominated and approved mentors with a copy of the Tribunal decision. 1. Except in a medical emergency to treat no more than: 1. 40 patients per full working day or the equivalent number of patients per part working day (an average of 5 per hour). 2. If the practitioner treats more than 40 patients per full working day or more than 20 patients per half working day due to a medical emergency, written notification must be provided to the Medical Council within 24 hours as to the details and nature of the medical emergency. 1. The practitioner is to notify the Medical Council in writing each fortnight of the number of patients she consulted per day and her daily working hours. 2. The practitioner is to meet the costs of compliance with all conditions. 3. Whilst the practitioner's principal place of practice is New South Wales, the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 4. Whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Medical Board of Australia. 1. 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: 11 January 2017