Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v West [2017] NSWCATOD 39 Hearing dates: 27 February and 01 March 2017 Date of orders: 22 March 2017 Decision date: 22 March 2017 Jurisdiction: Occupational Division Before: Hon F Marks ADCJ, Principal Member Dr E Kok, Professional Member Dr R King, Professional Member Y Rowling, Community Member Decision: (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. Catchwords: MEDICAL PRACTITIONER - inappropriate prescription of drugs of addiction - inadequate clinical records - admissions by respondent Held- respondent guilty of professional misconduct -orders made cancelling registration and for payment of costs Legislation Cited: Health Care Complaints Act, 1993, ss39(2), 90B(3) Health Practitioner Regulation National Law (NSW), 139B, 139E , 149C(7) 145A Health Practitioner Regulation (NSW) Regulation, 2010, Sch 2 Poisons and Therapeutic Goods Act, 1966, s 28(3) Poisons and Therapeutic Goods Regulation, 2008, cls 27, 34, 79 Cases Cited: Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981) Ex parte Tziniolis: Re the Medical Practitioners Act (1996) 67 SR (NSW) 448 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr David George West (Respondent) Representation: Counsel: A Britt (Applicant) M Hutchings (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Dibbs Barker (Respondent) File Number(s): 1620181, 2016/00378742 Publication restriction: Non-publication order extending to the identity of any patient of the respondent REASONS FOR DECISION 1. In these proceedings, the complainant, the Health Care Complaints Commission ("HCCC"), has alleged that the respondent, Dr David George West, is guilty of unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law ("The National Law"). The respondent has admitted that he is guilty of the several Complaints brought against him as particularised in the Notice of Complaint and that he is guilty of professional misconduct. 2. The Notice of Complaint is, for present purposes, in the following terms: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("The National Law") HEREBY COMPLAINS THAT: Dr David George West ("the practitioner") of [address omitted] 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 TO COMPLAINT ONE At all relevant times Dr West was a registered medical practitioner practising as a general practitioner at [a regional area] in the State of New South Wales. PARTICULARS OF COMPLAINT ONE PATIENT A 1. The practitioner prescribed the drug Fentanyl to Patient A on the date and in the quantities set out in the schedule attached and marked 'A': a. Without obtaining knowledge of Patient A's previous medical history including any opioid use or history of drug abuse or dependency; b. Without performing an appropriate and adequate medical assessment prior to issuing this prescription; c. Without evidence of a diagnosis; d. In an inappropriate strength, and in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ("the PTG Reg"). PATIENT B 2. The practitioner prescribed the drugs Oxycodone hydrochloride, buprenorphine and Diazepam to Patient B on the dates and in the quantities set out in the schedule attached and marked 'B': a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions. 3. The practitioner prescribed the drug buprenorphine to Patient B on the dates and in the quantities set out in the schedule attached and marked 'B': a. Without ascertaining whether Patient B was on an Opioid Treatment Program (OTP) before prescribing the drug; b. Without obtaining an authority to prescribe drugs of addiction to a drug dependant person (within the meaning of section 27 of the Poisons and Therapeutic Goods Act 1966 ("the PTG Act")) from the NSW Ministry of Health, contrary to section 28(3) of the PTG Act; c. In a quantity that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the PTG Reg. Patient C 4. The practitioner prescribed the drugs Diazepam and Nitrazepam to Patient C on the dates and in the quantities set out in the schedule attached and marked 'C': a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions; b. Inappropriately for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the PTG Reg. 5. The practitioner prescribed the drugs Fentanyl and buprenorphine to Patient C on the dates and in the quantities set out in the schedule attached and marked 'C': a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions; b. Inappropriately in that he failed to respond to Patient C's drug seeking behaviour and continued to prescribe the drugs from August 2013 when he became aware that Patient C was on the Prescription Shopping Program; c. 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 Ministry of Health, contrary to section 28(3) of the PTG Act in circumstances where the practitioner had formed, or ought reasonably to have formed, the opinion that the patient was a drug dependant person; d. In a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the PTG Reg. 6. The practitioner continued to prescribe the drug Fentanyl to Patient C after 30 August 2013 as set out in the attached schedule which is marked 'C', in circumstances where he knew the fentanyl patches were being abused by Patient C, in that she was extracting the fentanyl from the patches and injecting the drug. 7. The practitioner prescribed the Schedule 8 drugs fentanyl and buprenorphine to Patient C on the dates and in the quantities as set out the schedule attached and marked 'C' in an inappropriate combination with benzodiazepines, namely Diazepam and Nitrazepam. Patient D 8. The practitioner prescribed the drugs Oxazepam, Diazepam and Temazepam to Patient D on the dates and in the quantities set out in the schedule attached and marked 'D': a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions; b. Without ascertaining Patient D's history, or confirming her diagnoses or current medication with her other practitioners; c. Inappropriately for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the PTG Reg; d. Without contacting Patient D's psychiatrist, or any mental health service, on 20 August 2014 and 26 August 2014, in circumstances where Patient D had presented with self inflicted injuries to her arm; e. Without responding appropriately to Patient D's drug seeking behaviour, including that the practitioner did not put a strategy in place to control the prescriptions. 9. The practitioner prescribed the drugs Oxazepam and Diazepam to Patient D on the dates and in the quantities set out in the schedule attached and marked 'D': a. In a quantity that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the PTG Reg. Patient E 10. The practitioner prescribed the drugs Diazepam, Codeine Phosphate with Paracetamol and Nitrazepam 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 making appropriate and timely referrals of Patient E to specialists for treatment, review and/or advice; c. In a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the PTG Reg; and d. Without responding appropriately to Patient E's drug seeking behaviour, including making enquiries as to whether Patient E was on an Opioid Treatment Program ("OTP") or on the Prescription Shopper List. Patient G 11. The practitioner prescribed the drugs Oxazepam and Nitrazepam to Patient G on the dates and in the quantities set out in the schedule attached and marked G: a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions; b. Inappropriately for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG Reg. 12. The practitioner prescribed the drugs Oxycodone hydrochloride, Buprenorphine and fentanyl to Patient G on the dates and in the quantities set out in the schedule attached and marked 'G': a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions; b. Inappropriately for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Regs; c. In a quantity and/or strength that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the PTG Reg; d. Without responding appropriately to Patient G's drug seeking behaviour in that he continued to prescribe the drugs to a patient when he knew, or ought to have known, that the drugs being prescribed were being, or likely to be, abused; e. 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 Ministry of Health, contrary to section 28(3) of the PTG Act, in circumstances where the practitioner had formed, or ought reasonably to have formed, the opinion that the patient was a drug dependant person. Patient H 13. The practitioner prescribed the drugs Oxazepam and Diazepam to Patient H on the dates and in the quantities set out in the schedule attached and marked 'H': a. Without performing an appropriate and adequate medical assessment prior to issuing such prescriptions; b. Without making timely referrals to specialists for treatment, review and/or advice; c. Inappropriately 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 Reg 2008. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B 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 West was a registered medical practitioner practising as a general practitioner at [a regional centre] in the State of New South Wales. PARTICULARS OF COMPLAINT TWO 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 D and F to H 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 THREE Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Background At all relevant times Dr West was a registered medical practitioner practising as a general practitioner at (a regional centre) in the State of New South Wales. PARTICULARS OF COMPLAINT THREE The Particulars for Complaints One and Two are relied upon and repeated, both individually and cumulatively. 1. Perusal of the several Complaints as particularised will identify the nature and extent of the professional misconduct of which the respondent has admitted guilt. However, the mere recitation of the contents of the Notice of Complaint does not, without more, provide sufficient colour to the circumstances which we need to consider. It is necessary, therefore, to set out some further material which is derived from evidence adduced in the course of the proceedings. That evidence consisted of a large volume of documentation including the patients' clinical notes and the expert report of Dr Stephen Howle. Evidentiary background 1. The respondent is age 75. He graduated MB/BS from Sydney University in 1966 and gained a FRCS (Edinburgh) in 1970. He has conducted a solo medical practice in the area where the misconduct occurred as a general practitioner since 1990, from converted premises which he had then purchased. At the present time, he holds approximately 3000 patient files, but as his records have not been computerised and are in paper form, he is unable to say how many of those patients are "current". The bulk of his practice is from the surrounding low socio-economic group as well as indigenous patients in the area. He bulk bills his patients. He currently sees patients four days a week, Mondays to Thursdays and on Wednesday afternoons he undertakes minor surgical procedures. He has one employee, his wife who works as his practice manager and receptionist. 2. Following complaints concerning the matters which gave rise to these proceedings, a Section 150 hearing was convened by the Medical Council of NSW and practice conditions were imposed prohibiting the respondent as and from 20 March 2015 from possessing, supplying, administering, or prescribing any drug of addiction or substance being commonly known as Schedule 8 and Schedule 4D drugs under the Poisons and Therapeutic Goods Act ("PTG Act"). In addition, the respondent was prohibited from consulting or treating more than 35 patients per day. Apart from the imposition of these conditions, the respondent has never come to the attention of any relevant authority with respect to his practice of medicine since he was first registered as a medical practitioner on 22 December, 1965. The expert report 1. The HCCC retained Dr Stephen Howle to review the clinical records of the respondent with respect to the patients who are the subject of these complaints and to express an expert opinion concerning the manner in which the respondent had conducted himself in his treatment of them. The report of Dr Howle became evidence in the proceedings and he gave oral evidence. The material which follows sets out, in summary form, details of the treatment afforded by the respondent to each of the patients based upon the report of Dr Howle, the documentary annexures to that report, and the expert opinion expressed by him. Patient A 1. This patient, then aged 30, consulted with the respondent on one occasion only on 24 July 2013. The clinical notes indicate that the patient requested a prescription for Fentanyl patches of 75 MCG/HR strength, complaining of low back pain. The clinical notes contain no notation of any history of the pain, previous treatment or treating doctors. Dr Howle thought that this was a "relatively high dose" and there was no notation concerning any attempt to confirm a previous prescription for this drug at that level. 2. Dr Howle thought that a patient who had not been seen before and who sought a narcotic drug without any medical information from a previous treating doctor should ring "alarm bells" on the basis that this was a drug seeking patient. In these circumstances, it was inappropriate to prescribe 15 days of treatment at this first consultation and that, at most, a prescription for a single patch of 3 days' supply would have been appropriate. 3. In all the circumstances, Dr Howle thought that the conduct of the respondent was significantly below the relevant standard expected of a practitioner of his level of training and experience. Patient B 1. This patient, aged almost 40, first consulted the respondent in April 2013 complaining of pain from a leg injury three years previously. The respondent prescribed 28 tablets of OxyContin 30mg prior to receiving advice the following day that this patient was on the OTP and should not be prescribed OxyContin. Between 25 November 2013 and 11 March 2015, the respondent prescribed quantities of Schedule 8 and Schedule 4D drugs of addiction of Norspan patches and Valium in quantities which exceeded any appropriate therapeutic dose. 2. Dr Howle noted that the Respondent had: * failed to document any appropriate or adequate assessment of the patient's condition; * failed to document any information obtained about the prior use of medication by this patient before commencing to treat him; * failed to document the reason for prescribing Norspan; * made no attempt to exclude other causes for the symptoms of the patient; * failed to conduct any physical examination; and * made no attempt to obtain information from previous treating doctors. 1. Furthermore, the respondent should have been aware of the drug-seeking behaviour of this patient and should have applied for an authority under the PTG Act. 2. Dr Howle was also critical of the respondent prescribing both Norspan and Valium concurrently because, firstly, each was addictive and would enhance the addictive potential of the other and, secondly, the combination, as is well known, is associated with possible physical complications. 3. In that the respondent had said that he had prescribed these substances to this patient for "opiate withdrawal" this was inappropriate and the patient should have been referred for specialist treatment. 4. Furthermore, the clinical notes of the respondent concerning this patient were inadequate. 5. Overall, the conduct of the respondent was assessed by Dr Howle as being significantly below the relevant standard. Patient C 1. This patient, aged 30, consulted the respondent between 15 April 2013 and 16 March 2015 and was prescribed a number of different drugs of addiction. The respondent was notified that this patient was on a Prescription Shopping Program in August 2013. The respondent failed to obtain the relevant authority to prescribe drugs of addiction for her. 2. Dr Howle noted that the clinical notes provided no health summary, no supporting evidence from a previous treating doctor or any investigations or reports concerning her professed complaint of a lumbar slipped disc, and no indication of any physical examination. The prescribing pattern indicated an accelerating prescription of drugs at a frequency which suggested "excessive use or abuse." No referral was made for expert assistance in dealing with this patient. 3. Overall, Dr Howle assessed the conduct of the respondent as being significantly below the relevant standard. Patient D 1. This patient, then aged 61, consulted the respondent between 20 August 2014 and 23 March 2015. When she first attended the patient required suturing of lacerations to her right forearm. At that consultation, the respondent prescribed three different benzodiazepines without recording any history of how the lacerations occurred nor any reasoning for prescribing these drugs. The report of Dr Howle narrates that the respondent, in a statement given at the Section 150 hearing, said that the patient had been abused as a child, and he discussed her problems with her without referring her for specialist assistance. The patient consulted the respondent again six days later to have the sutures removed, and there is a note of a dozen new cuts to her right arm. This should have suggested the possibility of self-harm. There is no notation of any satisfactory management of the patient whether by contacting other treating practitioners or referral for specialist assistance. 2. Dr Howle was strongly critical of the prescribing pattern of the respondent for this patient which was characterised by increasing doses of Serepax and Valium. There were scripts for 500 tablets of Oxazepam and 675 tablets of Diazepam in a period of 183 days with no explanation in the clinical notes for this level of prescription. 3. Overall, Dr Howle said that the treatment afforded to this patient and the failure to make adequate and appropriate clinical notes was significantly below the relevant standard. Patient E 1. This patient, aged 39 consulted the respondent between 17 June 2009 and 23 March 2015. During this period, he prescribed 4560 Panadeine Forte tablets, 5800 Diazepam 5 mg tablets and 25 Nitrazepam 5 mg tablets. There was no notation in the clinical notes of any assessment of the patient prior to prescribing these drugs of addiction, there was no notation of any referral for specialist assistance, and there was no notation of any attempt to obtain any information from any previous treating practitioners. Furthermore, the respondent had failed to ascertain whether this patient was on an OTP or on the doctor shopper list, when, in fact, the patient had been registered on the OTP since March 2013 with another medical practitioner. In the same way, there was no attempt made by the Respondent to seek authority to prescribe drugs of addiction for this patient. 2. Having regard to the failures of the respondent outlined above, Dr Howle was of the opinion that his conduct was significantly below the relevant standard. Patient F 1. This patient, aged 43, consulted the respondent on four occasions between 6 June 2007 and 8 July 2009. The respondent prescribed Temazepam, Nitrazepam and Endep 25 mg tablets without making a notation of having conducted an appropriate assessment of the patient for doing so and without making any notation of why these drugs were prescribed except for a brief reference to "depression" in the case of the Endep. Accordingly, there was no "apparent appropriate therapeutic purpose". 2. In all the circumstances, Dr Howle said that the conduct of the respondent was significantly below the relevant standard. Patient G 1. This patient, aged 40, consulted the respondent between 5 January 2010 and 23 February 2014. During this period, the respondent prescribed a large number of various drugs of addiction without applying for any authority to do so and in quantities which exceeded any appropriate therapeutic purpose. By way of example, between 26 August 2014 and 5 March 2015, a period of 191 days, this patient was prescribed 315 days' worth of Fentanyl. 2. Overall, the respondent's clinical notes were inadequate and the respondent failed to obtain the relevant authority to prescribe drugs of addiction to a person whom he knew to have formerly been drug addicted. This is despite the respondent having apparently sought assistance from a local Mental Health Unit because he suspected the patient was abusing the Fentanyl and that the patient had used heroin. 3. Dr Howle said that the conduct of the respondent was significantly below the relevant standard. Patient H 1. This patient, aged 41, consulted the respondent on one occasion when he was prescribed 25 tablets of Temazepam 10 mg and 50 tablets of Diazepam 5 mg. There was no notation of any assessment having been conducted before prescribing these medications. 2. Overall, in the circumstances, Dr Howle was of the opinion that the conduct of the respondent with respect to this patient was below the relevant standard, but there is no mention of it being "significantly" below the standard. If this were a single instance, we would not take it into account in determining these proceedings but, we are entitled to take it into account as constituting unsatisfactory professional conduct by way of an aggregate assessment of the overall conduct of the respondent. Patient I 1. This patient, aged 46, consulted the respondent between 21 February 2012 and 3 March 2015. On the initial consultation, the respondent noted that the patient was suffering from "anxiety and panic attacks". There was no notation as to why such a diagnosis was made, nor of any relevant history including any prior treatment. Furthermore, no management plan was noted in the records. 2. The respondent prescribed Diazepam 5 mg and Oxazepam 30 mg, usually in quantities of 100 tablets. The quantities prescribed should have lasted longer than the frequency with which the respondent continued to issue prescriptions to this patient. Indeed, between 21 February 2012 and 4 February 2015, the respondent prescribed 3250 Valium 5 mg tablets and between 21 February 2012 and 9 April 2013, the respondent prescribed 1275 Serepax 30 mg tablets for this patient. These quantities could not be explained as being for any appropriate therapeutic purpose, especially as benzodiazepines should usually be prescribed for short-term treatment. 3. Overall, Dr Howle was of the opinion that the conduct of the Respondent was significantly below the relevant standard. 4. In his oral evidence, Dr Howle was asked about the likely impact on some of the patients of the abnormal level of prescription of some of the drugs of addiction. In general terms, Dr Howle said that over-prescription of drugs, if taken, would lead to increased drowsiness and perhaps exacerbation of symptoms of depression, if present. There was, in addition, a risk that patients would become dependent, or more dependent, upon these drugs and a further risk that they would be used for non-therapeutic purposes. Dr Howle was unable to give specific evidence concerning any particular patient because of the paucity of the respondent's clinical notes. 5. As we have said, the respondent did not proffer any evidence concerning the question of whether he was guilty of unsatisfactory professional conduct or professional misconduct, but he conceded that he was guilty of both by reference to the matters particularised in each of the complaints. We approach our determination of the proceedings on the basis of the Complaints and the particulars and evidence given in the proceedings and note that there is no exculpatory explanation offered by the respondent. Professional misconduct 1. It is now necessary to determine whether the Respondent is guilty of professional misconduct as conceded by him. This expression is defined in the National Law 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. 1. Accordingly, in order to consider whether the respondent is guilty of professional misconduct we must also make reference to whether he is guilty of unsatisfactory professional conduct. This expression is defined in the National Law as follows; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (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 made formal concessions that they have been made out, which concessions were properly made having regard to the factual circumstances which we have outlined above. In approaching this issue we are, on the basis of well-established principles, entitled to have regard to each of the individual instances of misconduct which have been identified and conceded, and all of those instances in the aggregate. As there is no controversy between the parties about this issue, and as the conduct of the Respondent may be viewed in general terms as a course of conduct in which he engaged whilst conducting his practice, it is sufficient if we consider all of the matters the subject of the Complaints in their totality. It then becomes necessary to consider whether, by reason of the seriousness of the misconduct, the suspension or cancellation of the respondent's registration is warranted, because this is the test imposed by the legislation. 2. In Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, Kirby P (as his Honour then was) in the NSW Court of Appeal 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. As is clear from the provisions of the National Law and from the many decided cases of appellate courts and this Tribunal, the raison d'être of the legislation is the protection of the public. Conduct which is significantly below the standard referred to will have the potential of creating a risk to the safety of the public at the hands of a medical practitioner. 2. As has been often endorsed 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 conceded by the respondent, coupled with the evidentiary material contained within the expert opinion of Dr Howle, are sufficient to justify a conclusion that, in the aggregate, the respondent is guilty of professional misconduct. Dr Howle has expressed the professional and expert opinion that the conduct of the respondent was significantly below the standard as described in the legislation. The Respondent did not contend otherwise. We unreservedly accept the opinion of Dr Howle, as assisting us in coming to this conclusion. 2. The professional misconduct of the respondent which we have found 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 a significant number of patients over a considerable period of time. It persisted even though the respondent was either aware, or should have been aware, that some of the patients were drug-seeking and drug-dependent. By his conduct, the respondent fed their dependency. The respondent conceded that 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, the respondent became 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 Howle, 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. 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. 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 be 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, as they are in the circumstances of these proceedings. 5. The above reasons constitute the reasons for the finding which we made at the conclusion of the first day of the hearing on 27 February 2017 that we were comfortably satisfied that the respondent was guilty of professional misconduct the subject of the complaints as particularised brought against him. Protective orders 1. It now becomes necessary to determine what protective orders may appropriately be made consequent upon our finding that the Respondent is guilty of professional misconduct as alleged against him. 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. The respondent tendered a statement and gave oral evidence in connection with that part of these proceedings in which we are required to consider what protective orders should be made. It was the primary position of the complainant that the registration of the respondent should be cancelled. It was the primary position of the respondent that he should be permitted to continue to practice medicine, preferably without any restrictions, but in the alternative subject to the practice conditions which currently prevail and which we have summarised above. 3. In his written statement, the Respondent acknowledged: 1. That he was not cognisant of the potential for drug seeking behaviour. 2. He had not documented his assessment and examination of his patients in his notes although it was part of his usual practice to do so. 3. That some of his patients may not have complied with his advice given in the course of a consultation about the frequency and extent of the use of the drugs which he had prescribe. 4. That although he was aware of the requirements to obtain an authority in some cases under the PTG Act, he did not appreciate that authorities were required for the prescription of Fentanyl patches or for medication over a period of time. 5. That with respect to the patients the subject of these Complaints, "I was naive in accepting their complaints on face value, not taking and recording an adequate history and making the appropriate enquiries to establish if the patient was drug seeking." 6. That he was not sufficiently diligent in making enquiries of the Prescription Shopping Program on all occasions. 7. His record-keeping was lacking. 8. That he had seen large volumes of patients each day and that time constraints had impacted upon his ability to keep appropriate records 1. The Respondent said that he now had no difficulty in advising his patients that he no longer prescribed drugs of addiction. Furthermore, he now restricted the number of patients seen each day in accordance with the practice conditions imposed upon him and that he was comfortable with this regime. 2. In his written statement the respondent said that he was intending to retire and that he was endeavouring to sell his practice. If he was unable to do so, he wished to have an opportunity to transfer the care of his patients to other practitioners. He sought some time to enable him to do this. 3. In the course of his oral evidence, the respondent said that having reflected on his practice, he had been too soft-hearted and trusting of his patients who were complaining of pain and that he had not realised some of them were drug-seeking. He said that he realised that he had made a mistake. He had been very upset and felt bad because he had been too naive and trusting. The investigations conducted by the Medical Council and the HCCC as well as his involvement in the proceedings had been stressful for him, although he was at pains to point out that he was not depressed. 4. In terms of his failure to keep proper notes, the respondent said in oral evidence that he had retained a lot of "stuff" in his head and had not written material up in his notes. He said that he has now tried to correct this deficiency. He also now takes better histories and records them fully as well as conducting a more extensive examination. 5. In discussing his future plans in the course of his oral evidence, the respondent said that he now would like the opportunity of continuing to practise for another two to three years. He said that he felt that he was "a very competent, knowledgeable and intelligent practitioner" and that he was physically "okay". He said that he had learned a lot from the mistakes that he had made and would hope to be able to practice without any restrictions. 6. The respondent described his patients as being from the lower socio-economic strata almost all of whom were bulk billed. There were some other practitioners in the area who also bulk billed, but to a much more limited extent. Accordingly, if he was deprived of the right to practice these patients would be disadvantaged. 7. In cross-examination, the respondent conceded that he had not expressed publicly any remorse for the impact upon his patients of his treatment of them. He denied that his prescription of drugs was potentially harmful to his patients and said that this would only occur if the patients abused the drugs. By this he was referring to circumstances where the patients failed to comply with his directions about how many of the drugs should be consumed and when. But he did concede that he had made a mistake when he over-prescribed to some of the patients. We understood the respondent to deny that he had placed any of his patients at risk and that he had fed their addiction. 8. The respondent gave evidence about such steps as he may have taken to become more aware of the problems of dealing with vulnerable patients who were, or might become, drug-dependent. He said that he attended local meetings and read articles on drug addiction in the AMA and other journals. He has not undertaken any specific courses dealing with drug addictions. 9. The respondent's practice is not computerised and is paper-based. He was asked how he recalled patients. He said that he told patients during the course of a consultation when they needed to see him next. If this was for the purpose of receiving results, he usually made an appointment with the patient, and this was never a problem. He said that if he did not receive the results when they were due he would arrange for this to be followed up by telephone and that his receptionist, who is his wife, would make telephone contact with the patients. He did not keep any system for routine reminders to be forwarded to patients, all of this being conducted by word-of-mouth. 10. The respondent relied on a reference provided by Associate Professor Austin Curtin dated 12 March 2015. He is a General Surgeon practising regularly in the region where the respondent's practice is situated. He described the patient population as being "afflicted by a higher than normal level of problems related to drugs, including methamphetamines, alcohol and other substances." He estimated that "over 25% presentations to modern General Practice involved mental illness, alcohol, illicit drug use and the unregulated use of prescription medication." Unfortunately, there is no indication that Associate Professor Curtin is aware of the complaints brought against the Respondent which are the subject of these proceedings. In these circumstances, it is inappropriate for us to rely in any way on the assessment made of the respondent's competency as a medical practitioner. However, we note that consistent with the opinion of Associate Professor Curtin, if the respondent were permitted to continue to practice medicine in that area he would be exposed to a significant proportion of patients presenting with conditions the same as or similar to the cohort of patients who are the subject of these proceedings. Consideration 1. As we have previously pointed out, it is necessary that we make some assessment of the ability of the respondent to practice safe medicine, as one of the matters which we must consider in determining appropriate protective orders. Such an assessment must be made on some appropriate evidentiary basis. The burden of demonstrating that the respondent can safely practice medicine in the face of the findings of professional misconduct rests on him. 2. We have struggled to identify any evidence of insight by the respondent into those matters which created the circumstances which pertain to his misconduct as found by us. It seems to us, from our understanding of the evidence given by the respondent, that he was more inclined to blame the patients for having failed to follow his presumably, oral, instructions about how much medication to take and when, for his current troubles than his own shortcomings in failing to adequately assess, diagnose, treat and record his patients' circumstances. If he had followed a regime which complied with the relevant standard, he would have minimised, if not eradicated, the potentially adverse consequences for his patients. Certainly, those patients who were already addicted and were drug-seeking would have either been forced to go elsewhere or referred by the respondent for specialist help. We are unable to conclude that the respondent has sufficient insight to enable him to comprehend why he engaged in the misconduct which he did. In these circumstances, we can have little confidence that the respondent would not offend again. 3. If the respondent wished to demonstrate that his record-keeping was now at an immaculate standard in marked contradistinction to the findings of Dr Howle, he could either have produced an extract from his records to us on a confidential basis for the purpose of the proceedings, or he could have arranged for an independent audit to be conducted for the purpose of these proceedings. He did neither. This information may have created some basis for an expression of confidence in the respondent's ability to practice medicine safely. 4. We do not regard the very limited steps taken by the respondent to gain greater understanding of problems in dealing with drug dependent patients as being adequate. There are a number of highly regarded courses and a body of literature available to medical practitioners dealing with these matters, and the respondent has obviously made no effort to avail himself of them. 5. In all the circumstances, we cannot have any confidence that the respondent has rehabilitated himself and that he is unlikely to offend again. It must be remembered that the misconduct which is at the heart of these proceedings is not confined to his failure to properly treat a cohort of patients who may have been drug-seeking. His failures extended to a failure to take and document a proper history, and a failure to carry out and document proper examinations, and a failure to prepare and document appropriate treatment programs. These are all serious matters which impact upon our decision about what protective orders are appropriate. 6. We have already noted that 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. 7. 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. The respondent submitted that we should take into account the plight of his patients who were currently being bulk billed and who might not be able to afford medical care provided elsewhere in deciding whether to cancel his registration. Whilst there must be concern for access to medical care, a consideration of this kind plays no part in the principles which must be applied in determining whether registration should be cancelled. Apart from matters of deterrence and the like, the focus of attention is the ability of the respondent to practise safe medicine. This cannot be displaced by concerns for the availability of bulk billed services. 4. 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. 5. The Respondent submitted that we should delay implementing any cancellation for a period to enable him to dispose of his practice. He suggested that a period of months may be appropriate. Again, because of our concerns for the safe practise of medicine it follows that providing any period in excess of say, seven days, would be inappropriate. 6. 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 did not put any argument in opposition to 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 seven 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 Amendments 22 March 2017 - Coversheet amended. 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: 22 March 2017