Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cain [2017] NSWCATOD 131 Hearing dates: 13, 14, 15 March 2017 and 11 August 2017 (final written submissions) Date of orders: 30 August 2017 Decision date: 30 August 2017 Jurisdiction: Occupational Division Before: A Britton, Principal Member D Beaumont, Professional Member V Gibson, Professional Member A Glass, General Member Decision: (1) Within 14 days of the date of this decision, the Commission must file and serve any proposed protective orders and submissions in support. (2) Within 14 days of receipt of the Commission's submissions, Mr Cain must file and serve his response to the Commission's proposed orders, any alternate proposed protective orders and submissions in support. (3) Within 7 days of receipt of Mr Cain's submissions, the Commission must file and serve any submissions in reply. (4) Within 30 days of the date of this decision, each party must notify the Tribunal and each other whether in their opinion the issue of protective orders can be adequately determined on the basis of written submissions and without holding a further hearing. Catchwords: PROFESSIONS AND TRADES - health practitioner - whether practitioner guilty of unsatisfactory conduct - whether practitioner guilty of professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318; 198 ALR 1; 77 ALJR 1122 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 King v Health Care Complaints Commission [2011] NSWCA 353 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 Sudath v Health Care Complaints Commission [2012] NSWSC 171 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) David Cain (Respondent) Representation: Counsel: S Maybury (Applicant) P Robertson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses Association (Respondent) File Number(s): 2016/00378804, 1620243 Publication restriction: Non publication order applies in respect of patient A and medical practitioner A REASONS FOR DECISION 1. The Health Care Complaints Commission (the Commission) has referred for determination a complaint about Registered Nurse, David Cain, (the Complaint) to the New South Wales Civil and Administrative Tribunal (NCAT). The Complaint relates to the care and treatment Mr Cain provided to 35-year-old Patient A in the two years prior to her death in August 2011. A coronial inquest found that on the day of her death, Patient A had purchased illicit drugs and her death was a direct result of "multiple drug toxicity". Deputy State Coroner Freund recommended that the Commission review Mr Cain's role in the care and treatment of Patient A. 2. Mr Cain is a credentialed mental health nurse and psychotherapist. He intermittently provided mental health services to Patient A from 1998 until her death. 3. Since 2001 until her death, Patient A was in the care of general practitioner Medical Practitioner A. On 1 November 2006, Medical Practitioner A referred Patient A to Mr Cain for psychotherapy sessions. Under Medical Practitioner A's supervision, from March 2009 Mr Cain provided regular care to Patient A under the Mental Health Nurse Incentive Plan. Under the plan, nurses credentialed by the Australian College of Mental Health Nurses provide one-on-one care to patients with severe mental health disorders, in partnership with medical practitioners. Care provided under this plan is Medicare-funded. 4. Medical Practitioner A and Mr Cain described Patient A as a "complex patient". She had been diagnosed with a borderline personality disorder, post-traumatic stress and major depression. According to Medical Practitioner A, some psychiatrists believed Patient A to be "untreatable". 5. Patient A had a long history of disturbed sleep and Stilnox abuse. Used to treat insomnia, Stilnox operates by depressing the central nervous system. Stilnox is known within the health profession to be highly addictive. 6. A couple of years before her death, Medical Practitioner A and Mr Cain entered into what Deputy State Coroner Freund in her findings into the death of Patient A, described as an "unorthodox arrangement" (the Arrangement). Under the Arrangement, Medical Practitioner A agreed to continue to prescribe Stilnox for Patient A provided that she undertook to hand the prescribed Stilnox to Mr Cain, who would act as custodian and permit Patient A to access Stilnox on request. Medical Practitioner A and Mr Cain claim that the aim of the Arrangement was to manage Patient A's Stilnox use by denying her ready access. Each claim Patient A initiated the Arrangement. 7. The Commission does not suggest that the Arrangement itself was improper. Nor does the Commission suggest that Mr Cain's actions in giving Patient A access to Stilnox under the Arrangement amounts to a "supply" of drugs within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW). The gravamen of the Complaint is the allegations that Mr Cain supplied Patient A in excess of Medical Practitioner A's directions as to dosage and, in addition, failed to provide her with adequate care and treatment. 8. Mr Cain admits some but not all of the matters alleged in the Complaint. Among other things, he admits failing to: * document supplying Patient A with Stilnox on numerous occasions; * consult with Patient A in person on each occasion he supplied Stilnox * inform Medical Practitioner A that Patient A consumed a whole box of Stilnox in a 24-hour period, after 17 February 2011, and * create and maintain a treatment plan for Patient A. 1. However, Mr Cain denies, as alleged by the Commission, supplying Patient A with 171 Stilnox tablets in the 10 months prior to her death, and, in an amount exceeding Medical Practitioner A's directions in relation to dosage. In addition, he denies failing to inform Medical Practitioner A that Patient A was "doctor shopping". 2. In these reasons we consider whether the conduct the subject of the Complaint which is denied by Mr Cain, is established and whether the admitted and proven conduct amounts to "unsatisfactory professional conduct" and "professional misconduct" within the meaning of the Health Practitioner Regulation National Law (NSW) (the National Law). The amended complaint 1. On the final day of the hearing the Commission was given leave to amend Particular 1 of Complaint 1. In closing submissions, the Commission advised that in addition it intended to withdraw sub-particulars 2(d)(i) and (v) of Complaint 1. Apparently, as a result of an oversight these sub-particulars were not deleted from the version of the amended complaint filed by the Commission. After the hearing we sought clarification and the Commission confirmed that sub-particulars 2(d)(i) and (v) of Complaint were withdrawn. The amended complaint is set out at Annexure A to these reasons. For convenience, it is referred to in these reasons as "the Complaint". 2. Except where conceded in writing, we must make findings in relation to each particular and then determine whether each is established on the balance of probabilities: s165H of the National Law. Mr Cain admits, in part or whole, four of the seven particulars listed in Complaint 1: Particulars 2, 4, 6 (b), 6(c) and 7 of Complaint 1. 3. The following are the disputed particulars of the Complaint. 4. Particular 1 alleges that: 1. Between approximately 25 May 2009 and 15 February 2010 [Mr Cain] supplied multiple but no more than 154 10mg Stilnox tablets to Patient A: 1. Pursuant to an agreement with Medical Practitioner A that was entered into on or around 25 May 2009 to store and supply Patient A's Stilnox medication for her use as per Medical Practitioner A's directions for supply, namely, 1 tablet per 24 hours and a maximum of 4 tablets per week; 2. Without providing appropriate care and management to Patient A in that [Mr Cain] failed to: 1. Monitor Patient A's mental state; 2. Monitor Patient A's response to Stilnox medication including: 3. (A) Sleep quantity; and/or 4. (B) Sleep quality 5. Discuss sleep hygiene 6. Discuss and/or monitor caffeine intake. 1. Particular 3 alleges that: 1. [Mr Cain] inappropriately, and in contravention to Medical Practitioner A's directions that Patient A should be supplied with a maximum of four tablets per week, supplied Patient A with an average dose of at least 5.8 Stilnox tablets per week between 23 January 2011 and 17 August 2011. 1. Particular 5 alleges that on 14 specific occasions between 2 February 2011 and 16 August 2011 Mr Cain supplied Patient A with Stilnox in excess of Medical Practitioner A's directions that a maximum weekly dose of four tablets be supplied to her. 2. Particular 6 alleges that Mr Cain failed to appropriately consult or engage with Medical Practitioner A in relation to Patient A in that: 1. Between 6 April 2009 and 16 August 2011 he failed to provide regular and timely updates to Medical Practitioner A in relation to Patient A; 2. At no time between 6 April 2009 and 16 August 2011 did he inform Medical Practitioner A that Patient A was obtaining prescriptions for medication from a number of medical practitioners other than Medical Practitioner A or "doctor shopping". 1. We will return to consider the admitted parts of the Complaint. Two-stage hearing 1. At the Commission's request, we conducted a "two-stage hearing", that is, a hearing where in the first stage the Tribunal determines whether all parts of the Complaint are proven and, in the second, after giving the parties an opportunity to consider its findings, determines the protective orders, if any, that should be made. (See for example, King v Health Care Complaints Commission [2011] NSWCA 353 and Sudath v Health Care Complaints Commission [2012] NSWSC 171.) 2. The key issues that remain to be determined are: First, in relation to Particular 1: 1. Whether between 25 May 2009 and 15 February 2010 Mr Cain supplied multiple but no more than 154 Stilnox tablets to Patient A pursuant to an agreement with Medical Practitioner A. 1. If so, whether Medical Practitioner A's directions for supply were one tablet per 24 hours and a maximum of four tablets per week; 2. If so, whether Mr Cain failed to provide "adequate care and management" to Patient A during the period, 25 May 2009 and 15 February 2010. Second, in relation to Particular 3: 1. Whether Medical Practitioner A directed Mr Cain that Patient A be supplied with a maximum of four Stilnox tablets per week throughout the period 23 January 2011 to 17 August 2011; 2. If so, whether throughout that period Mr Cain supplied Patient A with an average dose of 5.8 Stilnox tablets per week. Third, in relation to Particular 5: 1. Whether Mr Cain supplied Patient A Stilnox tablets in excess of Medical Practitioner A's maximum weekly dosage in one or more of the 14 periods listed in Particular 5. Fourth, in relation to Particular 6: 1. Whether between 6 April 2009 and 16 August 2011, Mr Cain failed to: 1. provide regular and timely updates to Medical Practitioner A in relation to Patient A; 2. inform Medical Practitioner A that Patient A was "doctor shopping". Fifth, whether each admitted or proven particular of Complaint 1, itself or when one or two particulars are taken together, amounts to "unsatisfactory professional conduct" within the meaning of ss139B(1)(a) and 139B(1)(l) of the National Law; and Sixth, if so, whether some or all of that conduct amounts to "professional misconduct" within the meaning of s 139E of the National Law. 1. The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. 2. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1]. Particular 1 The terms of the agreement between Mr Cain and Medical Practitioner A entered into on or about 25 May 2009 in terms of dosage 1. From 2002 until Patient A's death, Medical Practitioner A prescribed Stilnox to Patient A. The evidence, both before the Inquest and in these proceedings, is that to manage Patient A's Stilnox issues, Medical Practitioner A and Mr Cain decided upon an agreement. Mr Cain does not dispute that it was a term of that agreement that he would store the Stilnox prescribed by Medical Practitioner A and supply it in accordance with Medical Practitioner A's directions. Nor does he dispute that Medical Practitioner A issued a written instruction that Patient A be supplied with no more than one tablet per 24 hours and four tablets per week. However, he now claims that he was authorised by Medical Practitioner A to exceed these amounts if needed. 2. Apart from two notes made by Mr Cain in February 2010, the only record about the instructions given by Medical Practitioner A to Mr Cain in relation to the provision of Stilnox to Patient A is a series of emails sent throughout April and May 2009 and a clinical note made by Mr Cain in September 2010. 3. In an email sent to Mr Cain on 6 April 2009, Medical Practitioner A wrote: I have given [Patient A] a script of 14 tablets of Stilnox. She should aim to make each package last for at least 28 days. Maximum dose is 1 tablet in 24 hours. Above this, the development of medication tolerance is accelerated. Also the seizure threshold is greatly lowered. [emphasis added] 1. In an email in reply, sent the following day, Mr Cain wrote: She dropped them in yesterday and I have suggested that she really needs to have some support on getting her management of this medication under control … 1. In an email to Mr Cain sent on 25 May 2009, Medical Practitioner A wrote: … I gave her the script for 14 Stilnox, which she should fill and give to you. She should not use more than 4 tab per week as an absolute maximum. I would like this usage to slowly decrease over the next few months. [emphasis added] 1. Mr Cain wrote in reply: The Stilnox I totally agree. She is very aware it is problem. I will SMS her and get her to drop them into me as soon as possible. We should over time move towards reducing her dependence on these for sleeping. 1. At the Inquest, Medical Practitioner A testified that he had discussed the Arrangement with Mr Cain and "we all agreed that we would give it a try with a limit of one to four tablets per month". (Transcript of proceedings, Inquest into the death of Patient A, Deputy State Coroner Freund, 4/11/14 at p 49, ll 15-17). The exchange, immediately following that answer suggests that the reference to "one to four tablets per month" is a transcription error and that Medical Practitioner A said "one to four tablets per week: Q: It was roughly one tablet every two days? A: Sometimes [Patient A] took two, so maybe it might've been using her medication twice, maybe three times - at the most three times a week. 1. In a letter to the Commission dated 14 April 2015, in answer to questions from the Commission, Medical Practitioner A wrote: (c) [Patient A] initiated and volunteered a proposal of harm minimisation and supervision whereby she have restricted access and provided supervision of her use of sleeping tablet medications, as a condition of being prescribed small quantities of such medication (Stilnox). It was my understanding that a box of Stilnox was kept at Mr Cain's office and generally [Patient A] would access an agreed quantity of tablets herself under Mr Cain's supervision. There were a few times that she was also given a small supply of diazepam in periods of crisis to prevent rapid escalation of her symptoms, but this was very uncommon. (d) The goal was always to minimise and reduce usage. She had a history of past benzodiazepine overuse and tolerance, with episodes in the distant past of taking up to 1 packet of Stilnox or other sedatives in a day without apparent effect. However, she also had long periods of no benzodiazepine or sedative medication use at all. The medication was prescribed with instructions: Maximum 1 tablet per 24 hours Maximum 4 tablets per week Maximum 14 tablets per month 1. In a further letter to the Commission dated 16 May 2016, in answer to the question, "At any time did you authorise RN Cain to exceed his rate of supply of Stilnox to [Patient A]?", Medical Practitioner A wrote: My advice to [Patient A] was not to exceed four tablets per week, and to take as few as possible and aim for periods of cessation. Her arrangement with Mr Cain was for medication safety and to prevent her from taking excessive stilnox impulsively. She would generally self-dispense in his presence. If she was given more than 4 tablets weekly in extreme situations, I do not think it was dangerous. On average usage rate as far as I was aware, she was compliant with medications prescribed by me. 1. In these proceedings, Medical Practitioner A testified that he instructed Mr Cain to give Patient A no more than one tablet per 24 hours, four tablets per week and 14 tablets per month. In cross-examination, he said if from time to time Patient A consumed more than these amounts it was unlikely to harm her given her high tolerance for drug use. 2. Copies of the prescriptions issued by Medical Practitioner A were not produced in these proceedings. The only records of the dosage instructions given with each prescription are Medical Practitioner A's clinical notes and a prescription history prepared by Medical Practitioner A's practice produced to NSW Police (see Exhibit A1, Tab 49, Annexures B and C). None of the prescriptions for Stilnox issued by Medical Practitioner A from 2009 until Patient A's death refer to a weekly or monthly cap. Most of the entries in Medical Practitioner A's clinical notes which refer to Stilnox being prescribed state "10 mg ½ - 1 tab nocte [at night] prn ["pro re nata" as needed]". The entry for 25 May 2009 makes no reference to PRN: "1/2 - 1 tab nocte". In answer to a question from the Tribunal, Medical Practitioner A claimed all Stilnox was prescribed and understood to be prescribed, on a PRN basis. He explained the reason for the absence of PRN entries in some of his clinical notes was the inadequate computer software used by his practice. 3. The claim that all Stilnox prescribed to Patient A throughout the period of the Complaint was prescribed on a PRN basis, is consistent with the evidence Medical Practitioner A and Mr Cain gave at the inquest into Patient A's death. We find from May 2009 Medical Practitioner A prescribed Stilnox to Patient A on a PRN basis. 4. In evidence given at the Inquest, Mr Cain testified: A: The aim was to keep it [Patient A's Stilnox use] at four per week and thereafter the aim was – that was the maximum per week. Q: Four per week. A: Yeah, four per week. [Emphasis added] 1. In a letter to the Commission dated 31 March 2016, Mr Cain wrote that the aim of the Agreement was to "try and keep [Patient A] to four tablets per week". (Emphasis added.) 2. In cross-examination in these proceedings, Mr Cain stated that Medical Practitioner A gave him a "verbal authorisation" to give Patient A more than four tablets per week if she was having a difficult time. According to Mr Cain, Medical Practitioner A said "try and keep it if you can … to four [per week] if you can … even lower". He said it had always been his aim to "keep her to four Stilnox per week" but this became increasingly difficult throughout 2011. The first mention of the alleged verbal authorisation given by Medical Practitioner A, was made by Mr Cain in cross-examination in these proceedings. 3. The Commission relies on the email sent by Medical Practitioner A to Mr Cain on 25 May 2009 (see [29] above) as evidence of an arrangement between Medical Practitioner A and Mr Cain to limit Patient A's intake of Stilnox to four tablets per week, to be supplied to her by Mr Cain. The email of 6 April 2009 from Medical Practitioner A is significant in construing the strength of the directions Medical Practitioner A gave to Mr Cain and the terms of the arrangement. Medical Practitioner A pointed out two significant dangers — that above four tablets per week Patient A's tolerance of the drug would accelerate and that her seizure threshold would be lowered. Accelerating the rise in tolerance would, self-evidently, increase the dosage needed by Patient A for the desired effect. Equally self-evidently, acceleration in tolerance would make reducing her dosage or managing it more difficult for her and those treating her addiction. 4. Harm minimisation was the goal of both Medical Practitioner A and Mr Cain. Medical Practitioner A had set clear parameters. While he conceded in his evidence that for Patient A to exceed those parameters on occasion would be unlikely to cause significant immediate harm, it would obviously retard any progress she might make and make her future management more difficult. This is precisely what appears to have happened in 2011. 5. Mr Cain's claim in cross-examination that he had received verbal authorisation from Medical Practitioner A to go beyond those parameters is dubious. It was not put to Medical Practitioner A in cross-examination nor did Mr Cain give this critical piece of evidence to the Inquest. He did not mention it in his statement of 17 February 2017 in response to the Complaint (Exhibit R1), nor did he mention it in his letter to the Commission of 22 June 2015, in response to a request from the Commission to "set out the precise terms of the verbal agreement with [Patient A] and [Practitioner A] and any verbal instructions issued by [Practitioner A]". While the "rule" in Browne v Dunn probably does not apply in these proceedings (see s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW); Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at 596 [159] per Flick and Perry JJ), the combination of these omissions suggests that Mr Cain may have invented this evidence only when he was cross-examined. 6. Medical Practitioner A's concession that a dosage over the directed amount would be unlikely to harm Patient A in a given instance is significant. But for him to have given such an authorisation would have been a deviation from the agreed treatment plan. He did not record it nor did Mr Cain. It was the very sort of discussion, if it took place at all, that health practitioners would be expected to and ordinarily would record, together with a short summary of the patient history that had evoked that discussion. The absence of records concerning this conversation on the part of both practitioners could be explained by inefficiency on both their parts, but is troubling. For these reasons we have some doubts about this aspect of Mr Cain's evidence. 7. On the other hand, at various times Medical Practitioner A prescribed Stilnox in amounts that would have enabled Patient A to take more than four tablets per week. So, for example, between 23 December 2009 and 16 February 2010 Medical Practitioner A issued four prescriptions for 14 tablets each, allowing approximately seven tablets to be supplied per week. And between 2 May 2011 and 4 July 2011, he issued five prescriptions for 70 tablets — a weekly average of 7.7 tablets. 8. Mr Cain's submission is that the plan to limit Patient A's intake to four tablets per week was simply that - a plan - and that, while it recorded Medical Practitioner A's and his aspirations as to the treatment of Patient A, if circumstances indicated, the plan could be and was occasionally varied. 9. In essence, the Commission alleges that Mr Cain was on a frolic of his own and was providing Stilnox in an unauthorised fashion. The evidence about this is ambiguous. There are two indications that the plan may have been varied as Mr Cain claims: first, the series of prescriptions issued by Medical Practitioner A that would have allowed the limit of four per week to be exceeded; second, Mr Cain's own treatment of Patient A. If Medical Practitioner A did authorise or acquiesce in Mr Cain's variations of the plan, it was not put to him during the hearing. That question remains unresolved. 10. Mr Cain is an unreliable witness. His records are poor and his memory is inaccurate and uncertain. Where his evidence is challenged, we can place little reliance on it. The only certain pieces of evidence available to us are the records of the prescription history maintained by Medical Practitioner A's practice, the clinical records, such as they are, and the SMS messages between Mr Cain and Patient A (the latter relate only to 2011). His unreliability, however, does not, of itself, prove the case against him. 11. It is also difficult to come to a satisfactory assessment of Medical Practitioner A's reliability as a witness. He was not examined or cross-examined in respect of certain important evidentiary issues, especially the question of verbal authorisation to vary the plan. He is not independent and has his own interest as the treating GP. His clinical records appear to be incomplete, and the fact that he issued prescriptions for more Stilnox than was necessary to meet the requirements of the plan raises unanswered questions. Given the paucity of evidence - the questions not resolved during these proceedings, such as whether the plan was variable, and the lack of documentary evidence - we are not in a position to determine whether as alleged, Medical Practitioner A's written directions for supply of Stilnox, remained unchanged throughout this period. The Commission bears the onus of proof on the balance of probabilities. In our view, it has not discharged that onus. 12. Particular 1(a) is not proven. Supply of multiple no more than 154 Stilnox tablets to Patient A between 25 May 2009 and 15 February 2010 1. A further evidentiary difficulty in relation to Particular 1, is the durability of the agreement made on 25 May 2009 for Mr Cain to be the custodian and supplier of Patient A's Stilnox. Specifically, whether between 25 May 2009 and 15 February 2010 (the relevant period), Mr Cain in fact supplied Stilnox to Patient A. 2. In his statement of 17 February 2017, Mr Cain claimed that up until 17 February 2010 Patient A was "self-medicating". 3. Mr Cain claims that the agreement with Medical Practitioner A was not "formalised" until February 2010, pointing in support to two handwritten clinical notes made by him. The first, dated 17 February 2010 reads: Could have killed [Patient A's infant daughter] Agreed Stilnox to remain with me and be given to her as requested She agreed She handed over remainder of used box I placed these in plastic sealed bag She has been using phenogen to help her sleep I said she must whenever possible to get all scripts from [Medical Practitioner A] - she raised problems of hours (GP) and work but will do her best to do this. [Patient A] seems serious and quite concerned with this situation. 1. The second dated 22 February 2010, reads: … [Patient A] just said she needed to talk re Stilnox and sleep We reviewed arrangement re Stilnox She agreed – if she had run out & she has script she can take a script and drop tablets to me at pre-arranged time I will have to reconsider not seeing her if she can't abide by this She agreed she is putting others at risk If I killed [Patient A's infant daughter] – I would have nothing to live for Agreement verbal All Stilnox with David [Cain] All scripts with David [Cain] Pick up as arranged by phone Get script whenever possible from [Practitioner A] All spare script at David [Cain] and to be filled by [Patient A] maximum of 4 tablet per week. 1. According to Mr Cain, the "formal agreement" was triggered by Patient A's acknowledgement that by consuming a box of Stilnox and proceeding to drive with her daughter as a passenger in her car, she had endangered her daughter's life. It is uncontroversial that Patient A was a devoted mother and cared deeply for her daughter. 2. In a letter dated 22 June 2015 in response to questions from the Commission, the NSW Nurses and Midwifes' Association (the Association), wrote that Mr Cain instructed that to the best of his recollection: 1. He entered into the Stilnox agreement in 2009 and recorded it in his clinical notes. 2. The agreement was made after Patient A disclosed she had taken a full box of Stilnox. 1. The reference to "2009" appears to be an error as the disclosure made by Patient A was not made until February 2010 and the sole references in Mr Cain's clinical notes to the agreement are the entries made in February 2010, set out above. 2. At the Inquest into the cause of Patient A's death, Medical Practitioner A testified that he recalled the trigger for the agreement being the incident where Patient A consumed a whole box of Stilnox and then proceeded to drive with her daughter as a passenger in her car. In these proceedings, when asked when the agreement came into effect, Medical Practitioner A said he could no longer recall when it commenced. 3. On 29 May 2009, Medical Practitioner A's notes recorded that he ceased prescribing Stilnox for Patient A. On 22 June 2009, Patient A obtained a script for Stilnox from another doctor at Medical Practitioner A's practice. Whether this came to the attention of Mr Cain or Medical Practitioner A is unclear. Whether Patient A provided that script to Mr Cain is unclear. Mr Cain was on leave between 1 and 21 July 2009. It is unclear what arrangements were made to supply Patient A with Stilnox during that period but, unless Mr Cain broke his leave, he would not have been in a position to do so. Neither Mr Cain's nor Medical Practitioner A's clinical notes assist in determining whether Mr Cain received all the scripts issued to Patient A by Medical Practitioner A, between May 2009 and February 2010. 4. There can be no argument as the Commission alleges, that there was an agreement between Medical Practitioner A and Mr Cain and that its general terms were as set out in the 25 May 2009 email. The more difficult question is whether Mr Cain in fact supplied multiple Stilnox to Patient A throughout the relevant period pursuant to that agreement. 5. The clinical notes of Medical Practitioner A and Mr Cain do not contain any mention of Mr Cain supplying Stilnox to Patient A during the relevant period. The first mention of a supply of Stilnox to Patient A is a clinical note made by Mr Cain, dated 18 February 2010. This is not determinative because as Mr Cain concedes, on many occasions he failed to document supplying Stilnox to Patient A. (See, sub-particulars 2(a) and (b).) 6. Patient A's actions in taking an entire box of Stilnox in February 2010, evidences that at that time she was self-medicating. It does not follow that at that time, or in the preceding nine months, she was not being supplied Stilnox by Mr Cain. However, it does raise doubts about whether Mr Cain supplied multiple Stilnox to Patient A throughout the relevant period when taken together with the absence of any record of Mr Cain supplying Stilnox, the evidence given by Medical Practitioner A at the inquest that the trigger for the agreement was the February 2010 driving incident and the fact that there were significant periods where Medical Practitioner A was not prescribing Patient A Stilnox. 7. While finely balanced, we are not reasonably satisfied, on the available evidence, that throughout the relevant period Mr Cain supplied multiple Stilnox to Patient A. In reaching that finding we have allowed for the equivocal nature of Mr Cain's response to Particular 1 contained in his statement of 17 February 2017 together with the absence of any evidence that he informed Medical Practitioner A that Patient A was not handing him Stilnox for safe keeping. 8. It follows Particular 1 is not established. Particular 3 1. Particular 3 requires the Commission to establish that: 1. between 23 January 2011 and 17 August 2011 Mr Cain supplied Patient A with at least 171 Stilnox tablets (a weekly average of 5.8), and 2. Practitioner A directed that Patient A be supplied with no more than four tablets per week. While not strictly speaking correct, for convenience we will refer to the period which is the subject of Particular 3, 23 January 2011 to 17 August 2011, as "2011". 1. For the reasons given above the second element is not established. Therefore Particular 3 fails. Nonetheless, as detailed evidence was given and the issue fully argued before us, we will proceed to address the amount of Stilnox supplied to Patient A in 2011. The number of Stilnox tablets supplied to Patient A in 2011 1. The Commission contends that throughout 2011 Mr Cain supplied Patient A with at least 171 Stilnox tablets. Mr Cain has given differing estimates about the number of Stilnox tablets he supplied to Patient A throughout 2011. In closing submissions, he contended that he supplied 112 tablets. 2. For these proceedings, the Commission prepared a table covering the period the subject of the Complaint, 19 January 2009 to 16 August 2011 (Exhibit A1 Tab 43) (the analysis table). The table sets out the dates Patient A was given prescriptions for Stilnox, the name of the prescriber, the amount of Stilnox prescribed and an estimate of the number of Stilnox tablets supplied by Mr Cain. The latter is based on Mr Cain's clinical notes and records of his SMS conversations with Patient A. According to the analysis table, on 84 occasions in 2011 Patient A collected Stilnox from Mr Cain, or Mr Cain delivered Stilnox to her. 3. Under cover of letter dated 6 July 2015 and addressed to the Commission, Mr Cain's representative, the Association, enclosed a table prepared by Mr Cain setting out his estimate of the number of Stilnox tablets supplied to Patient A. According to that table, in 2011 Mr Cain supplied 49 Stilnox tablets to Patient A and on each occasion, he supplied a single tablet. In a statement dated 17 February 2017, Mr Cain increased that estimate to 100. In cross-examination, he explained that the reason for revising his original estimate of 49 was that when he prepared the original estimate he only had access to his clinical notes, not the records of his SMS conversations with Patient A. 4. Initially, in cross-examination, Mr Cain claimed that he supplied Patient A with more than one Stilnox tablet in a 24 hour period on only two occasions in 2011. When taken to a number of text messages which expressly refer to multiple tablets being supplied or more than one supply in a 24-hour period, Mr Cain conceded that it may have been more. He made a similar concession at the coronial inquest. 5. In cross-examination, Mr Cain proffered two explanations for the apparent inconsistency between his claim of giving Patient A more than a single Stilnox tablet on only two occasions in 2011 and the text messages which referred to Stilnox in the plural. First, he claimed that when Patient A asked for more than one tablet "there was no use arguing by text" and he dealt with and refused the request when he met with Patient A. Second, he claimed his practice was to use the plural, "meds" when referring to single dosages of medication. 6. As is apparent, the reason for the parties' differing estimates about the number of tablets supplied to Patient A throughout 2011 is the disputed assumption made by the Commission that on 58 of the 84 occasions Mr Cain supplied Stilnox to Patient A, he supplied more than one tablet. That assumption is based on SMS conversations between Mr Cain and Patient A which refer to Stilnox in the plural — "them" "some" "tabs" "they". The Commission contends that on those occasions Patient A was given at least two Stilnox tablets. The terms of the messages are significant, singly and cumulatively. To illustrate the gravamen of these text messages, we set out a number of examples. 7. At 6.49pm on 23 January 2011, Mr Cain sent a message in the following terms: "They are there [Patient A], D". Patient A replied, "Thank you so much david". These messages followed a telephone conversation in which it appears Mr Cain told Patient A that he would provide Stilnox to her. The use of the plural "they" implies that more than one pill was left for her. Mr Cain's explanation that he was referring only to one tablet when he used the plural may make sense if he had used the term "meds" but it does not when using the plural definite article alone. 8. On 24 January 2011 at 5.50pm Patient A sent an SMS: "David I had some bad news today and am a little upset. Would it be possible to get some for tonight and none on Weds pls? I understand if not possible…" Mr Cain replied at 6.14pm, "It will be late. After 9. Okay? David". At 9.37pm he sent another message, "They are there [Patient A]". At 9.49pm Patient A sent a message thanking him. In this case it is evident that Patient A is asking for "some" Stilnox, that is, more than one tablet but is offering to forego the medication on Wednesday. The only plausible way to interpret Mr Cain's response is that he agreed to leave more than one tablet with her. 9. On 28 January 2011, eight messages were exchanged in the course of which Mr Cain asked Patient A at 9.02am "Tabs arrived okay?" Patient A responded at 11.11am that she would check her mail. At 11.15am, Mr Cain wrote, "I forgot about the 26 so you should have them for tonight." At 6.09pm he asked, "Are they there [Patient A]?" and she replied at 7.01pm, "Yes they are thank you very much". Both parties to the texts used the plural definite article. The reference is obviously to more than one tablet. 10. On 2 February 2011, Mr Cain again asked whether "the tabs" had arrived. 11. On 3 February 2011, the following exchange took place by SMS. At 5.36pm, Patient A wrote, "David is it possible to get some tonight and none on Sunday pls?" Mr Cain (5.43pm): "[Patient A] I will drop out tabs but not sure when. I will txt when they are there…" Patient A (5.48pm): "Thank you so much I really appreciate it…" Mr Cain (7.54pm): "They are there [Patient A] just tried to ring…" Patient A (8.27pm): "Thank you…" Mr Cain also told Patient A that he wanted to speak to her by telephone and they discussed this. At 8.31pm Mr Cain sent a message saying that he could not ring at that time and asked whether he could talk to her the following day, adding, "Are you okay? There must be a reason for the tabs tonight." Patient A replied at 10.44pm, "Tomorrow [a phone call] is fine. Feeling spread far too thin, quite brittle and like I might shatter at any moment. A dr I sometimes see asked me to get my scripts from other docs for a while and I am feeling a bit desperate I suppose." 12. Once again, it is clear that in this exchange, Patient A asked for more than one tablet of Stilnox to be supplied with the proviso that she would not have one on another day later that week. Mr Cain agreed to supply more than one tablet but it is also evident that he was concerned about her usage of multiple pills that night. 13. On 6 February 2011, Mr Cain sent a text message at 3.31pm as follows: "[Patient A] I put the tabs there as I thought you may need them…" He also made an entry in his clinical notes, "I let [Patient A] know I had put tabs out. [Patient A] rang got stilnox said thanks." 14. On about 30 occasions in text messages, Patient A asked Mr Cain for "some" Stilnox and Mr Cain responded by referring in the plural to "tabs" or to "they" or "them" when referring to Stilnox tablets. The tenor of these exchanges was that Patient A would plead for "some" additional medication usually due to feeling poorly for some reason. On some occasions, she would offer to do without later in the week. 15. On 18 other occasions on which Patient A had not referred in a text message to obtaining "some" Stilnox but had telephoned Mr Cain or sent another query by text, he referred in text messages in the plural to Stilnox. For example, on 12 February 2011, Patient A sent a text asking whether he would prefer that she "pick up from your letterbox". His reply was that he had "just put them in" her letterbox. On 9 March, he referred to having "dropped in your tablets". And on 8 June he told Patient A that he would "drop them off". 16. On a number of occasions - 21 April 2011, 3 June 2011, 19 June 2011 and 25 June 2011 - the text messages specify numbers of Stilnox tablets being discussed. 17. On 21 April 2011, Patient A asked Mr Cain whether it was possible to "get some for tonight". Mr Cain replied that he had forgotten to pick up more supplies of Stilnox and had only two tablets left. He said, however, that he would put "them" out for her. She thanked him. 18. On 3 June 2011, Patient A sent the following message to Mr Cain at 10.28pm: "David I know I'm asking a lot but possible to get twice the amount again? I desperately need some good sleep." Mr Cain replied that he would "try and get you some more tabs". 19. On 19 June 2011, Patient A again asked for "some for tonight". Mr Cain replied that he would "put out about 3" and later asked Patient A if she wanted him to deliver "them" to her. 20. On 25 June 2011, once more Patient A asked for "some for tonight" and asked whether it was "possible to try four stilnox this one time". Mr Cain replied that he would "put out" and later that "they are on there [sic] way". The next day Patient A sent a text apologising for the previous night and thanking Mr Cain for being so understanding. Consideration 1. In closing written submissions, Mr Cain again revised his estimate of the number of Stilnox tablets he supplied to Patient A in 2011, increasing the number from 100 to 112. He based the revised estimate on the number of prescriptions issued by Medical Practitioner A, not his clinical notes and the records of SMS messages. He pointed out that in 2011, Medical Practitioner A issued Patient A with 10 prescriptions (140 tablets) and on the same day two of those prescriptions were issued, 12 April 2011 and 15 August 2011 Patient A consumed a whole box of Stilnox, , suggesting that she did not deliver the filled prescriptions to Mr Cain for safe keeping. Applying that analysis, Mr Cain asserts that he supplied on average less than four tablets per week (140 – 24 = 112; 112 ÷ 29.5 weeks = 3.79). 2. The available evidence indicates that in 2011 Medical Practitioner A or a practitioner from his practice issued Patient A with 11 prescriptions for Stilnox (a total of 154 tablets). Given that two of those prescriptions were probably not given to Mr Cain, this suggests that Patient A probably gave to Mr Cain for safe keeping a total of 126 Stilnox tablets. 3. What then is the explanation for the discrepancy between that figure and the Commission's estimate of 171? 4. One possible explanation is that Patient A handed to Mr Cain prescriptions issued by medical practitioners not associated with Medical Practitioner A's practice. At the inquest Mr Cain admitted that he was aware that Patient A was doctor shopping. He testified: A: Yes … and I was continually trying to get her to go to [Medical Practitioner A]. The question then would be if I stopped her going –then she wouldn't bring the stilnox to me, then that was my plan to keep her safe. (Transcript of proceedings, Inquest into the death of Patient A, Deputy State Coroner Freund, 4 November 2014, pp 8, 9.) 1. Later he was asked: Q: Did you tell Medical Practitioner A this information around this time, "Look, [Medical Practitioner A], I've just found out that she's possibly seeing someone else to get her scripts. Perhaps we even need to review again whether our plan's actually working"? A: Well, the idea was, my – the way I was trying to manage it was for Stilnox to come to me and for me to hold files – for me to hold any scripts because the next time was – she would pick up – my plan was for her to keep everything in my care so that I could manage the number she was getting at a time. Q: But clearly at that point in time – obviously you're suggesting that she was not only going to you, but she was sourcing it still from other people? A: And hopefully bring it to me… Q: … do I take it that you didn't have complete faith that she was going to comply with this agreement or arrangement that you had in place that you would be the only person – and [Medical Practitioner A] – to provide her with Stilnox? A: I didn't – my faith was in the fact that I was hoping that we'd built enough trust so that she would give me the Stilnox wherever she got them from and the scripts. As much as possible I encouraged her to see [Medical Practitioner A]. (Transcript of proceedings, Inquest into the death of Patient A, Deputy State Coroner Freund, 4 November 2014, pp 14,15). 1. Although there are ambiguities and unanswered questions in this passage of evidence, it implies that if Patient A obtained any Stilnox from any source Mr Cain tried to manage her dosage by holding the scripts (filled or unfilled), whoever had issued them. Whether Patient A always complied with the arrangement we cannot know. But this evidence demonstrates that it is quite possible that over the relevant period Mr Cain took possession of more Stilnox than was prescribed by Medical Practitioner A. 2. A further possibility is, as the Commission suggests, that at the start of the relevant period, Mr Cain already held a number of Stilnox tablets on behalf of Patient A. If correct, it would need to be established that he held at the least 45 tablets (171-126 = 45). It seems unlikely that Mr Cain held that number of tablets on 23 January 2011 because 18 days later he informed Patient A that his supplies of Stilnox had run out. (See SMS message from Mr Cain to Patient A 11 February 2011.) 3. Whatever the explanation for the discrepancy, we can only trace 126 tablets to Mr Cain via Medical Practitioner A or a member of his practice. Yet, if the text messages are given their ordinary natural meaning - as we think they should be - it is probable that Mr Cain held and supplied more than 126 tablets to Patient A. The evidentiary problem is compounded because Mr Cain's records were poorly maintained and are incomplete. The difficulty is further compounded by the fact that Patient A was, to Mr Cain's knowledge, "doctor shopping" for Stilnox. 4. As we have stated, Mr Cain is an unreliable witness. His own estimates varied over time. His records are poor and his memory is inaccurate and uncertain. Where his evidence is challenged, we can place little reliance on it. The only certain pieces of evidence available to us are the records of scripts issued by Medical Practitioner A's practice, the clinical records, such as they are, and the SMS messages. The SMS messages can provide only an estimate of the numbers of Stilnox tablets supplied by Mr Cain to Patient A and require us to accept the linguistic premise that Mr Cain disputes. Although this method of analysing the amounts of Stilnox supplied to Patient A is less than optimal, it is the best available. In our view, it is sufficient to establish that it is more probable than not that Mr Cain supplied at least 171 Stilnox between 23 January 2011 and 17 August 2011. Making the necessary arithmetical calculation from that base number, it follows that Mr Cain supplied more than four tablets per week on average, and that the average for the whole period was in the order of 5.8 per week. Directions as to dosage 1. The principal evidentiary difficulty in relation to Particular 3, is as we noted above, the direction given to Mr Cain about dosage may have been more flexible than that alleged by the Commission. For the reasons discussed, we are not satisfied on the balance of probabilities that Medical Practitioner A directed Mr Cain to supply Patient A with no more than four Stilnox tablets per week. 2. Particular 3 is not established. Particular 5 1. Particular 5 alleges that in 14 separate weekly periods between 2 February 2011 and 16 August 2011, Mr Cain exceeded the maximum weekly dose of four tablets prescribed by Medical Practitioner A in the arrangement of May 2009. This particular is, in effect, a variation of Particular 3. 2. For the reasons given in relation to Particular 3, this particular is not established. Particular 6 1. Mr Cain denies sub-particulars 6(a) and 6(d): [Mr Cain] failed to appropriately consult or engage with Medical Practitioner A in relation to Patient A in that: … (a) between 6 April 2009 and 16 August 2011 he failed to provide regular and timely updates to Medical Practitioner A in relation to Patient A; … (d) at no time between 6 April 2009 and 16 August 2011 did he inform Medical Practitioner A that Patient A was obtaining prescriptions for medication from a number of medical practitioners other than Medical Practitioner A or "doctor shopping". Provision of regular and timely updates to Medical Practitioner A about Patient A 1. In closing written submissions at [69]-[72], Mr Cain appeared to deny sub-particulars 6(a). However, under the heading "conclusion" he expressly admitted the allegation: [88]. Given this apparent inconsistency after the hearing, we wrote to Mr Cain and asked for clarification. He replied that he denied sub-particular 6(a) and provided short written submissions in support. 2. Mr Cain was not invited to provide further submissions, nor did he seek leave to. He was simply asked to clarify whether he admitted sub-particular 6(a). Accordingly, we did not consider these additional submissions. The authorities have consistently identified the harm in filing submissions without, or outside, leave: see for example, NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48; (at 192); and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 (at 513, 514); Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 (at 330). Consideration 1. In 2010, the only record of any communication between Medical Practitioner A and Mr Cain was three short emails sent by Mr Cain. In 2011, the only written record was an email from Mr Cain to Medical Practitioner A, sent four days after Patient A's death. Mr Cain concedes that there are scant records of any communication between him and Medical Practitioner A about Patient A. However, he claims that he and Medical Practitioner A were in regular verbal communication. 2. In our view the email sent by Mr Cain to Medical Practitioner A on 22 August 2011 is telling about the frequency of the communication between the two. In that email, Mr Cain informed Medical Practitioner A that Patient A had terminated her sessions with him and in the last couple of weeks had become more depressed and had disclosed to him that she had taken ICE and a box of Stilnox. On 16 August 2011 Patient A advised Mr Cain of her decision to terminate their relationship and having taken a full box of Stilnox the day before (see text message sent by Patient A to Mr Cain on 16 August 2011 and the clinical note made by Mr Cain 15 August 2011). Yet, as the 22 August 2011 email reveals, Mr Cain delayed reporting these material developments for at least seven days. 3. Mr Cain's clinical notes for the 16 days before her death contain troubling observations made by Mr Cain about an apparent deterioration in Patient A's mental state: "sleep terrible", "looks tense", "didn't want to talk" "not coping", "struggling". During this time, Patient A's demands for Stilnox accelerated and Mr Cain was supplying in excess of one tablet a day. There is no evidence that Mr Cain raised these concerns with Medical Practitioner A. Nor is there any evidence to suggest that this period was uncharacteristic of the frequency of the communication between Mr Cain and Medical Practitioner A. 4. The only evidence to support Mr Cain's claim of giving regular and timely updates to Medical Practitioner A in relation to Patient A is that given by Medical Practitioner A. At the inquest he testified that he and Mr Cain communicated "about a number of patients on a fairly regular basis, just brief updates, sometimes he'd send an email". Like the claim made by Mr Cain, Medical Practitioner A's evidence is also un-particularised and un-documented. 5. There is no evidence, and nor is it suggested, that Mr Cain and Medical Practitioner A arranged to speak at any particular time about Patient A, or any of their shared patients. Nor is there evidence of them having in place some type of formal or informal system which ensured that each made time in their busy schedules to update the other about Patient A's progress. We are unable to accept Mr Cain's claim that he gave timely and regular verbal updates to Medical Practitioner A in relation to Patient A. 6. While there is some evidence that from time to time between 6 April 2009 and 16 August 2011, Mr Cain provided Medical Practitioner A with updates about Patient A, we are not satisfied that he did so on a regular and timely basis. 7. Sub-particular 6(a) is established. Informing Medical Practitioner A of Patient A's "doctor shopping" 1. At the Inquest it was revealed that in the two years before her death, in addition to Medical Practitioner A and colleagues at his practice, Patient A had been obtaining scripts for Stilnox and other medication from other medical practitioners. 2. At the Inquest Mr Cain admitted being aware in 2011 of Patient A's "doctor shopping". He claimed he informed Medical Practitioner A of this fact. 3. At the inquest Medical Practitioner A said that the problem with Patient A, as with many patients with personality disorders: [I]s that if they don't get what they want from one doctor, they just go to the next and the next and the next and the next. … But [Patient A] to her credit, was certainly quite upfront. I didn't know her to be - to tell lies. She would certainly omit to say stuff … But she didn't actually lie – not much. (Transcript of proceedings, Inquest into the death of Patient A, Deputy State Coroner Freund, 4 November 2014,p 51) 1. Medical Practitioner A testified that he was aware that when he was away, Patient A saw other doctors. However, he denied otherwise being aware that she was obtaining prescriptions for Stilnox from other practitioners. 2. At the Inquest Medical Practitioner A testified that he agreed to prescribe Stilnox, benzodiazepines (Valium) and pain medication to Patient A, on condition that she undertook not to seek supply from a doctor outside his practice unless she was unable to see him and disclosed the alternate supply to Mr Cain and himself. He stated that Patient A was aware that if she failed to do so, he would stop prescribing medication. He denied being told by Mr Cain that Patient A had been doctor shopping and said had he known this he would have ceased prescribing. 3. In a letter to the Commission dated 16 May 2016, Medical Practitioner A wrote: [I] had no idea, and could not have known about the significantly additional medication [Patient A] was being prescribed from numerous doctors around Sydney …. At the time Stilnox was a private script item and PBS information and assistance from the doctor shopper hotline was not available for this medication. 1. In support of his claim that he informed Medical Practitioner A of Patient A's doctor shopping, Mr Cain pointed to two clinical notes made by Medical Practitioner A. In the first, made in August 2010, Medical Practitioner A wrote that he had counselled Patient A about "benzo [benzodiazepine] issues"; in the second, made in June 2011, he wrote "Problem with meds. Took some diazepam sleep abnormally". 2. In these proceedings when questioned about these notes, Medical Practitioner A stated that he thought Patient A was seeing psychiatrist, Dr Masood Khan, around that time and suggested that Dr Khan may have been prescribing benzodiazepine. Mr Cain points out that there was no evidence of Patient A seeing Dr Khan in the two and a half years prior to her death. Mr Cain points out that there is no record of Medical Practitioner A having issued a prescription to Patient A for benzodiazepines, since 2004. 3. The Commission submits that two notes of Patient A taking benzodiazepine over a two-year period is an inadequate basis to support a finding that Medical Practitioner A knew Patient A was doctor shopping. In addition, the Commission argues that the claim made by Mr Cain in these proceedings of not being able to recall whether he knew that Patient A was doctor shopping, provides yet another example of his lack of candour and the unreliability of his evidence. Consideration 1. Medical Practitioner A was aware that prior to 2009, Patient A had been doctor shopping. He acknowledged she was capable of doing so throughout the period the subject of the Complaint; indeed this was one of the reasons he gave for entering into the Arrangement. 2. Mr Cain's claim that he informed Medical Practitioner A that Patient A was doctor shopping is unsupported. The evidence that Medical Practitioner A was aware that on two occasions Patient A was taking Valium, while consistent with, falls short of, establishing Mr Cain's claim of informing Medical Practitioner A that Patient A was doctor shopping. The evidence is word against word. Neither Medical Practitioner A nor Mr Cain are independent witnesses. Each has an interest in minimising their culpability in respect of Patient A's "unauthorised" use of medication. While Mr Cain is an unreliable witness, of itself that does not provide a sufficient basis to prefer Medical Practitioner A's account. On the available evidence we are not satisfied on the balance of probabilities that Mr Cain did not inform Medical Practitioner A of Patient A's doctor shopping. 3. Sub-particular 6(d) is not established. Summary 1. Particular 2, 4, 6(a), (b) and (c) and 7 of Complaint 1 (the impugned conduct) are admitted or established. The balance of Complaint 1 is not established. Does the impugned conduct amount to "unsatisfactory professional conduct"? 1. The Commission contends that the impugned conduct amounts to unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law. These provisions state: (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. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Does the conduct the subject of each established particular, demonstrate that the knowledge, skill or judgment possessed, or care exercised by Mr Cain fell significantly below the standard reasonably expected of a nurse of an equivalent level of training or experience? 1. To answer this question we must: (i) identify the standard "reasonably expected" of a nurse of an equivalent level of training or experience to Mr Cain (the relevant standard), and (ii) evaluate whether the conduct the subject of each established particular demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Mr Cain in the practice of his profession of nursing, fell "significantly below" the relevant standard. It is not contended that the knowledge and skill possessed by Mr Cain fell below the relevant standard. Rather, we understand the Commission to contend that the judgment possessed and care exercised by Mr Cain fell significantly below that standard. 2. There is no argument that the conduct the subject of each established particular was "in the practice of" Mr Cain's profession of nursing. 3. Mr Cain registered as a nurse in 1973 and worked in a clinical capacity until 1984. For close to a decade he then worked in nurse education and held various senior roles in the mental health field. He is a credentialed mental health nurse with the Australian College of Mental Health Nurses. The relevant standard therefore is the standard reasonably expected of an experienced mental health nurse with specialist training. Does the conduct described in Particular 2 demonstrate that the judgment possessed, or care exercised by Mr Cain fell significantly below the relevant standard? 1. In five parts, Particular 2 relates to Mr Cain's failure to keep adequate clinical records in relation to Patient A: * Sub-particular (a) relates to Mr Cain's failure to document supplying approximately 113 Stilnox tablets to Patient A between February 2010 and January 2011. * Sub-particular (b) relates to Mr Cain's failure to document supplying Stilnox to Patient A on 26 occasions in 2011. * Sub-particular (c) relates to Mr Cain recording that he personally consulted with Patient A on 1 and 3 August 2011, when he was in Melbourne on each of those dates. * Sub-particular (d) relates to four occasions when Mr Cain billed Patient A for Medicare services but failed to document providing any service to Patient A on those dates. Sub-particular (e) relates to Mr Cain's failure to accurately document the frequency and content of his SMS conversations with Patient A in 2011. 1. Mr Cain admits that the conduct described in Particular 2 amounts to unsatisfactory professional conduct. Mr Cain's record keeping in respect of Patient A was demonstrably inadequate. Were it not for the records of the text messages obtained by the Police for the purpose of the Inquest, there would be little documentation about the interaction between Mr Cain and Patient A in the 12 months before her death, including the supply of Stilnox on numerous occasions. 2. At the request of the Commission, registered nurse Elaine Ford, gave an opinion about the conduct particularised in the Complaint and whether it fell below the relevant standard and, if so, to what extent. Ms Ford set out her opinion in reports dated 24 February 2016 and 4 March 2017, and in addition gave oral evidence. 3. Ms Ford was critical of Mr Cain's poor clinical records. In her opinion this conduct fell significantly below the relevant standard. We agree. Does the conduct described in Particular 4 demonstrate that the judgment possessed, or care exercised by Mr Cain fell significantly below the relevant standard? 1. Particular 4 relates to Mr Cain's failure to provide appropriate care and management to Patient A by allowing access to Stilnox (by pick up or delivery) without personally consulting her on approximately 63 occasions. 2. Self-evidently by failing to consult face-to-face, Mr Cain was unable to properly assess Patient A's mental state. We note that on many occasions Mr Cain left Stilnox for Patient A in various unsecure positions, including in a letterbox and on one occasion, in a bag at the front of her apartment block. 3. Mr Cain admits that this conduct amounts to unsatisfactory conduct. In Ms Ford's opinion this conduct falls significantly below the relevant standard. We agree. Does the conduct described in sub-particulars 6(a), 6(b) and 6(c) demonstrate that the judgment possessed, or care exercised by Mr Cain fell significantly below the relevant standard? 1. Each sub-particular relates to Mr Cain's failure to appropriately consult or engage with Medical Practitioner A in relation to Patient A. * Sub-particular 6(a) relates to Mr Cain's failure to provide regular and timely updates to Medical Practitioner A in relation to Patient A. * Sub-particular 6(b) relates to Mr Cain's failure to inform Medical Practitioner A that he was not able to adequately monitor Patient A. * Sub-particular 6(c) relates to Mr Cain's failure to inform Medical Practitioner A that on two occasions after 17 February 2010, Patient A disclosed that she had consumed a box of Stilnox in a 24-hour period. Self-evidently, this was an important piece of information in the clinical picture. The standard expected of a mental health nurse with Mr Cain's training and experience would be to understand this and to ensure that information was given to the patient's GP. Mr Cain's failure to inform Medical Practitioner A of these developments demonstrates that the judgment he possessed and care exercised fell significantly below the relevant standard. 1. Mr Cain, as a senior Registered Nurse practising in Community Mental Health, assumed sole responsibility for not only holding, and administering Stilnox as prescribed, but ensuring that any changes in Patient A's condition or treatment were communicated to her GP. 2. As the Commission submits, Mr Cain's consultation with and reporting to Medical Practitioner A in respect of Patient A was grossly inadequate. The conduct described in sub-particulars 6(a), 6(b) and 6(c), individually and together, demonstrates judgement and care which falls significantly below the standard reasonably expected of a nurse with Mr Cain's level of experience or training. Does the conduct described in Particular 7 demonstrate that the judgment possessed, or care exercised by Mr Cain fell significantly below the relevant standard? 1. Particular 7 relates to Mr Cain's failure to create and maintain a treatment plan in respect of Patient A. Mr Cain was required under the Mental Health Nurse Incentive Plan to develop a formal, written, reviewable treatment plan. In addition, good nursing practice required that he develop and maintain such a plan. 2. Ms Ford was strongly critical of Mr Cain's failure to maintain a treatment plan and considered it to be a serious deficiency. 3. With a complex patient such as Patient A, the lack of any treatment plan was not merely a technical transgression. It meant that Mr Cain did not have the benefit of an objective measure to evaluate and review Patient A's progress. The absence of any plan probably goes some way to explaining why, as Mr Cain now acknowledges, that by 2011 he had allowed himself to "become a locked pharmacy cupboard". The lack of a treatment plan demonstrates that the judgment possessed and care exercised by Mr Cain fell significantly below the relevant standard. Summary 1. Each of the established particulars amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. Given this finding, it is not necessary to determine whether that conduct also amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(l). Does the impugned conduct also constitute professional misconduct? 1. Complaint 2 alleges that Mr Cain is guilty of professional misconduct under s 139E of the National Law. 2. "Professional misconduct", is defined by s 139E of the National Law to mean: 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. In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at [638]. 2. Mr Cain points out that he admitted to much of the conduct the subject of the Complaint and Ms Ford is of the opinion that he has taken steps to improve areas of his clinical practice. While this may be relevant to whether protective orders should be made, and if so the type of orders, but is not relevant to the assessment of whether the impugned conduct is sufficiently serious to justify the sanction of suspension or cancellation. 3. This is not a case of an occasional transgression or failure to comply with technical or procedural rules. Cumulatively the established particulars were objectively serious and repeated over an extended period. We find that the instances of unsatisfactory professional conduct when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Cain's registration. 4. Complaint 2 is established. Protective orders 1. At the close of the hearing, the issue of the most appropriate way to conduct the second stage of the hearing was discussed. Each party indicated that in their opinion the matter could be dealt with on the basis of written submissions without holding a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW). We foreshadowed our intention to give the parties an opportunity to reconsider their respective positions after they had an opportunity to review our reasons for decision. 2. We make the following orders: 1. Within 14 days of the date of this decision, the Commission must file and serve any proposed protective orders and submissions in support. 2. Within 14 days of receipt of the Commission's submissions, Mr Cain must file and serve his response to the Commission's proposed orders, any alternate proposed protective orders and submissions in support. 3. Within 7 days of receipt of Mr Cain's submissions, the Commission must file and serve any submissions in reply. 4. Within 30 days of the date of this decision, each party must notify the Tribunal and each other whether in their opinion the issue of protective orders can be adequately determined on the basis of written submissions and without holding a further hearing. Annexure A AMENDED COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery 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 Mr David Cain ("the practitioner") of […] being a registered nurse 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 the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 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 ONE The practitioner was first registered as a nurse in 1973. The practitioner is a credentialed mental health nurse and a psychotherapist who provided a mental health service to Patient A between 1998 until 18 August 2011 when she was found deceased by police in her home from a suspected drug overdose. PARTICULARS OF COMPLAINT ONE Between approximately 25 May 2009 and 15 February 2010 the practitioner supplied multiple but no more than 154 10 mg stilnox tablets ("stilnox tablets") to Patient A: pursuant to an agreement with Medical Practitioner A that was entered into on or around 25 May 2009 to store and supply Patient A's stilnox medication for her use as per Medical Practitioner A's directions for supply, namely,1 tablet per 24 hours and a maximum of 4 tablets per week; without providing appropriate care and management to Patient A in that the practitioner failed to: monitor Patient A's mental state; monitor Patient A's response to the stilnox medication including: A. sleep quantity; and/or B. sleep quality; discuss sleep hygiene; discuss and/or monitor caffeine intake. The practitioner failed to keep adequate clinical records in relation to Patient A in that: between 16 February 2010 and 21 January 2011, he failed to document supply to Patient A of approximately 113 tablets of stilnox; he failed to document supply of stilnox to Patient A on the following dates: 28 January 2011; 2 February 2011; 3 February 2011; 23 February 2011; 2 March 2011; 9 March 2011; 18 March 2011; 21 April 2011; 27 April 2011; 1 May 2011; 6 June 2011; 1 July 2011; 16 July 2011; 17 July 2011; 21 July 2011; 4 August 2011; 13 August 2011; he incorrectly documented a face to face meeting with Patient A in Sydney on the following dates when the practitioner was interstate in Melbourne: 1 August 2011; 3 August 2011; he failed to document any service provided to Patient A on the following dates on which he billed Patient A for Medicare services: 4 March 2010; 9 April 2010; 12 May 2010; 5 August 2010; 28 January 2011; 2 February 2011; between 23 January 2011 and 16 August 2011 he failed to accurately document: the frequency of the SMS messages between himself and Patient A; the content of the SMS messages between himself and Patient A. The practitioner inappropriately, and in contravention to Medical Practitioner A's directions that Patient A should be supplied with a maximum of four tablets per week, supplied Patient A with an average dose of at least 5.8 stilnox tablets per week between 23 January 2011 and 17 August 2011. The practitioner failed to provide appropriate care and management to Patient A in that he supplied Patient A with stilnox tablets, including by way of delivery to Patient A's home or arranging for her to collect the stilnox tablets from another place, without personally consulting with Patient A on approximately 63 occasions in the amounts and on the dates as set out at Schedule B. The practitioner supplied Patient A stilnox tablets in excess of Medical Practitioner A's directed maximum weekly dose of 4 tablets during the following periods: at least 6 tablets between 2 February 2011 and 6 February 2011; at least 8 tablets between 20 February 2011 and 26 February 2011; at least 7 tablets between 4 March 2011 and 9 March 2011; at least 6 tablets between 15 March 2011 and 21 March 2011; at least 7 tablets between 24 April 2011 and 30 April 2011; at least 6 tablets between 7 May 2011 and 11 May 2011; at least 12 tablets between 19 May 2011 and 25 May 2011; at least 7 tablets between 28 May 2011 and 2 June 2011; at least 10 tablets between 6 June 2011 and 11 June 2011; at least 10 tablets between 25 June 2011 and 1 July 2011; at least 7 tablets between 16 July 2011 and 22 July 2011; at least 8 tablets between 23 July 2011 and 29 July 2011; at least 10 tablets between 1 August 2011 and 6 August 2011; at least 6 tablets between 13 August 2011 and 16 August 2011. The practitioner failed to appropriately consult or engage with Medical Practitioner A in relation to Patient A in that: between 6 April 2009 and 16 August 2011 he failed to provide regular and timely updates to Medical Practitioner A in relation to Patient A; between 6 April 2009 and 16 August 2011 he failed to inform Medical Practitioner A that he was not able to adequately monitor Patient A; on or at any time after 17 February 2010, he failed to inform Medical Practitioner A that Patient A had consumed 14 stilnox tablets in a 24 hour period; at no time between 6 April 2009 and 16 August 2011 did he inform Medical Practitioner A that Patient A was obtaining prescriptions for medication from a number of medical practitioners other than Medical Practitioner A or "doctor shopping". Between 6 April 2009 and 16 August 2011 the practitioner failed to create and maintain a treatment plan for Patient A. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT TWO Complaint One particulars 1, 2(b), 3, 4, 5, 6 and 7 are repeated and relied upon individually. Complaint One and the particulars thereof are repeated and relied upon cumulatively. ******** 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: 30 August 2017