Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Qadri [2017] NSWCATOD 155 Hearing dates: 10, 11, 12 and 13 October 2017 Date of orders: 30 October 2017 Decision date: 30 October 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr L Cotterell, Professional Member Dr N Harris, Professional Member S Lovrovich, Community Member Decision: (1) The respondent is found guilty of professional misconduct. (2) The registration of the respondent is cancelled (3) The respondent is not permitted to seek reregistration within a period of two years from 13 October 2017. (4) The respondent is to pay the costs of the complainant in an amount assessed in default of agreement. Catchwords: Medical practitioner - inappropriate prescription of drugs of addiction without authority - held guilty of professional misconduct - finding that cancellation of registration is appropriate protective order - costs order made. Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 Poisons and Therapeutic Goods Regulations 2008 Cases Cited: HCCC v Dr Nemeth [2012] NSWMT 4 Spicer v NSW Medical Council (unreported, CA No.3 of 1981 (19 February 1981) Health Care Complaints Commission v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157 HCCC v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Osman Qadri (Respondent) Representation: Counsel: I Latham (Applicant) J Downing (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2017/00142880 Publication restriction: Non-publication order with respect to the name of any patient or former patient of the respondent and any material which may tend to identify such patient reasons for decision Background 1. in these proceedings, the complainant the Health Care Complaints Commission alleges that by reason of a number of complaints particularised in an Amended Complaint the respondent is guilty of professional misconduct and that appropriate protective orders should be made. In essence, the respondent conceded that he was substantially guilty of the misconduct alleged against him and that he was guilty of professional misconduct. He further conceded that it was appropriate that protective orders be made, but did not concede the nature and extent of those orders as sought by the complainant. 2. We set out below the form of the Amended Complaint which constitutes the basis of these proceedings, amended to anonymise the location of the practice and with excerpts from the respondent's Reply document inserted in bold to show those matters which were conceded and those contested by the respondent. 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 Osman QADRI ("the practitioner") of (a Sydney suburb), NSW being a medical practitioner registered under the National Law, BACKGROUND The practitioner was first registered as a medical practitioner in Australia on or around 14 January 2008. At all relevant times he was employed as a solo General Practitioner at (a Sydney suburb) in NSW. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars 1 – 27 of this Complaint 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. The Practitioner admits that he is guilty of unsatisfactory professional conduct under Section 139B(1)(a) and/or (l) of the National Law. The Practitioner admits the Background to Complaint One. PARTICULARS OF COMPLAINT ONE PATIENT A 1. The practitioner prescribed the schedule 8 drug Fentanyl and schedule 4D drug, Temazepam to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. without performing an appropriate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Temazepam) and section 79 (Fentanyl) of the Poisons and Therapeutic Goods Act 1966 ("the PTG Act") Regulations 2008 ("the PTG Regs"); d. without obtaining an authority to prescribe a drug of addiction (Fentanyl) 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 Patient A was a drug dependant person; and e. in an inappropriate combination. 2. During the period set out in the schedule attached and marked A, the practitioner failed to respond appropriately to Patient A's drug seeking behaviour: a. by failing to contact the NSW Drug & Alcohol Specialist Advisory Services (DASAS); and b. by not initiating contact with the Doctor Shopping Medicare service. 3. The Practitioner admits the events of paragraph 1. but states: a. In relation to subparagraph a, this is admitted but he performed a medical assessment on 15 August 2011 which led to a diagnosis of chronic severe pain to the cervical spine with radicular symptoms and right sided sciatica. Heed was also taken of A/P Bodel's diagnosis in 2009 following the patient's MVA in 2009 that caused a disc protrusion at C5/6 level; b. Subparagraph b is admitted; c. In relation to subparagraph c, he adds that he did recommend a plan to reduce dosages of Fentanyl (reductions started from 5.8.2011)and Temazepam and commence non-drug alternatives; d. Subparagraph d is admitted; e. Subparagraph e is admitted. 4. The Practitioner admits paragraph 2. PATIENT B 3. The practitioner prescribed the schedule 8 drug Oxycodone, and schedule 4 drug Codeine Phosphate + Paracetamol to Patient B on the dates and in the quantities set out in the schedule attached and marked B: a. without performing an appropriate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Codeine Phosphate + Paracetamol) and section 79 (Oxycodone) of the PTG Act Regs; and d. without obtaining an authority to prescribe a drug of addiction (Oxycodone) to a drug dependant person 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 Patient B was a drug dependant person. 4. During the period set out in the schedule attached and marked B, the practitioner failed to respond appropriately to Patient B's drug seeking behaviour: a. by failing to seek specialist pain management support; and b. by not initiating contact with the NSW Opioid Treatment program of DASAS. 5. The Practitioner admits the events of paragraph 3. but states: a. In relation to subparagraph a, this is admitted but adds that he performed an assessment on 7 October 2011 and diagnosed lumbar spine pathology; b. He admits subparagraph b; c. In relation to subparagraph c, he prescribed Oxycontin for a short period on 7 October 2011, discussing reducing the dosage at subsequent consultations; d. He admits subparagraph d. 6. The Practitioner admits paragraph 4. PATIENT C 5. The practitioner prescribed the schedule 8 drug Oxycodone and schedule 4 drugs Tramadol and Codeine Phosphate + Paracetamol to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a. without performing an appropriate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Tramadol and Codeine Phosphate + Paracetamol) and section 79 (Oxycodone) of the PTG Act Regs; and d. without obtaining an authority to prescribe a drug of addiction (Oxycodone) to a drug dependant person 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 Patient C was a drug dependant person. 7. The Practitioner states that not all of the dispensings set out in paragraph 5 equate with his clinical records. He also states: a. In relation to subparagraph a, this is admitted but adds that he did perform an assessment at the latest on 23 January 2012 and he confirmed the diagnosis of cerebral palsy and lumbar spine injury; b. He admits subparagraphs b, c and d. In relation to c., he conducted a trial of acupuncture on XX. PATIENT D 6. The practitioner prescribed the schedule 4D drugs Diazepam and Alprazolam to Patient D on the dates and in the quantities set out in the schedule attached and marked D: a. without performing an appropriate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. 8. The Practitioner admits the events of paragraph 6. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 27 August 2011 and diagnosed an anxiety disorder due in part due to painful skin lesions on his scalp; b. He admits subparagraph b; c. In relation to subparagraph c. he spoke about non-drug alternatives, stopped him on Xanax on 26 September 2011 and had a plan to wean him off Valium. On 3 February 2012, he contacted the Bankstown Methadone clinic and was advised that the patient was not known there. PATIENT E 7. The practitioner prescribed the schedule 8 drug Fentanyl to Patient E on the dates and in the quantities set out in the schedule attached and marked E: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 79 of the PTG Act Regs; and d. without obtaining an authority to prescribe a drug of addiction (Fentanyl) to a drug dependant 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 Patient E was a drug dependant person. 8. During the period set out in the schedule attached and marked E, the practitioner failed to respond appropriately to Patient E's drug seeking behaviour: a. by repeatedly prescribing a high dose opioid; b. by failing to create a management plan; and c. by failing to approach DASAS or the NSW Opioid Treatment Programme. 9. The Practitioner does not admit the events of paragraph 7 PATIENT F 9. The practitioner prescribed the schedule 8 drugs Oxycodone, Morphine and Methadone and the schedule 4 drugs Codeine Phosphate + Paracetamol and Tramadol to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. in an inappropriate quantity contrary to section 34 (Codeine Phosphate + Paracetamol and Tramadol) and section 79 (Oxycodone, Morphine and Methadone) of the PTG Act Regs. 10. The Practitioner admits the events of paragraph 9. but states: a. In relation to subparagraph a, this is admitted but adds that he did assess the patient on 2 February 2011 and he confirmed the diagnosis of terminal cancer (metastatic tongue) that caused great pain and distress b. In relation to subparagraph b, the patient was under the care of many specialists who prescribed medication; c. Refers to the response above for subparagraph b. PATIENT G 10. The practitioner prescribed the schedule 8 drug Morphine 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 the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 79 of the PTG Act Regs; and d. without obtaining an authority to prescribe a drug of addiction (Morphine) to a drug dependant person 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 Patient G was a drug dependant person. 11. The Practitioner admits the events of paragraph 10. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 9 September 2011 and diagnosed severe lumbar spine pain due to bulges at the L2-4 levels; b. In relation to subparagraph b, heed was taken of the fact the patient was under the care of Dr Davidson, neurosurgeon; c. He admits subparagraphs c and d. PATENT H 11. The practitioner prescribed the schedule 4D 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 the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. 12. The Practitioner admits the events of paragraph 11. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 17 May 2012 diagnosing anxiety and depression with insomnia; b. In relation to subparagraph b, the patient was already under the care of a counsellor but not a specialist; c. In relation to subparagraph c, he recommended non-drug alternatives and planned for reducing benzo derivatives from 6 December 2012 and ceased Valium on 7 March 2013. He checked with the Doctor Shopper line and the Blacktown Methadone clinic on 4 October 2012. PATIENT I 12. The practitioner prescribed the schedule 4D drugs Oxazepam and Diazepam and the schedule 4 drug Tramadol to Patient I on the dates and in the quantities set out in the schedule attached and marked I: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. 13. The Practitioner admits the events of paragraph 12. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 7 June 2012 and diagnosed extreme anxiety and insomnia. b. He admits subparagraph b but states that on 7 June 2012 and 1 March 2014 he suggested the patient see a psychologist, c. In relation to subparagraph c, he verified that the patient was not on the Medicare Prescription Shopping program and recommended non-drug alternatives. On 6 January 2014 he planned to wean the patient off benzodiazepines. PATIENT J 13. The practitioner prescribed the schedule 4D drugs Oxazepam and Diazepam to Patient J on the dates and in the quantities set out in the schedule attached and marked J: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs; and d. inappropriately on 22 April 2013 in circumstances where Patient J was exhibiting drug seeking behaviour by claiming that her previous prescription for Serepax had been stolen. The Practitioner admits the events of paragraph 13. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 15 August 2011, and he provided counselling for anxiety and depression. b. In relation to subparagraph b, he referred the patient to a psychologist Dr Stade on 2 May 2015. c. In relation to subparagraph c, he prescribed Valium for a short period but was planning to wean her off benzodiazepine derivatives from September 2014; d. He admits subparagraph d, PATIENT K 14. The practitioner prescribed the schedule 4D drugs Oxazepam and Diazepam to Patient K on the dates and in the quantities set out in the schedule attached and marked K: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs; and d. inappropriately on and after 10 February 2015 in circumstances where Patient K was exhibiting drug-seeking behaviour as identified in the practitioner's clinical notes as 'getting emotional and verbally abusive' and 'unwilling to cease benzos'. The Practitioner admits the events of paragraph 14. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 4 October 2012 following an assault, with a diagnosis of anxiety and insomnia; b. In relation to subparagraph b, the patient was receiving counselling only. He referred the patient to Leanne Allen psychologist on 2 December 2014; c. In relation to subparagraph c, he recommended a plan to reduce benzodiazepine derivatives dosages and later, Valium; d. He admits subparagraph d, PATIENT L 15. The practitioner prescribed the schedule 4D drugs Alprazolam, Oxazepam and Diazepam and the schedule 4 drug Codeine Phosphate + Paracetamol to Patient L on the dates and in the quantities set out in the schedule attached and marked L: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. The Practitioner admits the events of paragraph 15. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient and diagnosed anxiety and depression with insomnia; b. He admits subparagraph b; c. In relation to subparagraph c, he prescribed Valium and Serepax after the patient's father died and did recommend non-drug alternatives. PATIENT M 16. The practitioner prescribed the schedule 4D drugs Alprazolam, Temazepam, Nitrazepam, Oxazepam and Diazepam to Patient M on the dates and in the quantities set out in the schedule attached and marked M: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. The Practitioner admits the events of paragraph 16. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient, a long standing patient of the clinic, diagnosing anxiety and depression; b. He admits subparagraph b but states that on 6 February 2014 he recommended the patient see a psychologist or psychiatrist, but the patient was reluctant, and on 15 May 2015 he referred her to a psychologist CBT treatment, Kim Van Balen; c. In relation to subparagraph c, he reduced the Xanax dosage on 26 May 2011 and recommended alternative treatment. He discussed at later consultations reduction of the Valium dosages. PATIENT N 17. The practitioner prescribed the schedule 4D drug Oxazepam to Patient N on the dates and in the quantities set out in the schedule attached and marked N: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. The Practitioner admits the events of paragraph 17. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 6 August 2013. He verified with an earlier prescriber the prescriptions for Serepax for anxiety disorder/agoraphobia; b. He admits subparagraph b but states that on 1 December 2014, he referred to a psychologist Kim Van Balen. c. In relation to subparagraph c, he recommended reducing dosages and commencing non-drug alternatives. PATIENT O 18. The practitioner prescribed the schedule 8 drugs Fentanyl and Oxycodone and the schedule 4 drug Tramadol to Patient O on the dates and in the quantities set out in the schedule attached and marked O: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and for an inappropriate period contrary to section 34 (Tramadol) and section 79 (Fentanyl and Oxycodone) of the PTG Act Regs; and d. without obtaining an authority to prescribe drugs of addiction (Fentanyl and Oxycodone) to a drug dependant person 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 Patient O was a drug dependant person. The Practitioner admits the events of paragraph 18. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 11 August 2011 and diagnosed a cervical disc protrusion at C5/6 level based on a MRI Scan, and degenerative changes; b. He does not admit subparagraph b and states that on 11 August 2011, he recommended treatment by a pain management specialist or neurologist/neurosurgeon. On 27 August 2011 he referred to Dr Robert Adler; c. In relation to subparagraph c, he recommended reducing dosages and commencing non-drug alternatives. Oxycontin was ceased on 19 December 2011; d. He admits subparagraph d, PATIENT P 19. The practitioner prescribed the schedule 8 Drug Morphine, schedule 4D drug Temazepam and schedule 4 drug Tramadol to Patient P on the dates and in the quantities set out in the schedule attached and marked P: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Temazepam and Tramadol) and section 79 (Morphine) of the PTG Act Regs; d. without obtaining an authority to prescribe a drug of addiction (Morphine) to a drug dependant person 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 Patient P was a drug dependant person; and e. in an inappropriate combination. The Practitioner admits the events of paragraph 19. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 18 August 2011 and diagnosed severe low back pain aggravated by heavy lifting at work; b. In relation to subparagraph b, the patient was under the care of a neurologist; c. In relation to subparagraph c, he planned to wean the patient off opioids. He reduced MS Contin from 60 to 30 mg on 26 March 2012, to 15 mg on 21 August 2014 and to 10 mgs on 15 September 2014. He contacted the Doctor Shopper line and Blacktown Methadone clinic on 20 October 2011; d. He admits subparagraph d; e. He admits subparagraph e. PATIENT Q 20. The practitioner prescribed the schedule 8 drugs Fentanyl and Oxycodone to Patient Q on the dates and in the quantities set out in the schedule attached and marked Q: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 79 of the PTG Act Regs; and d. without obtaining an authority to prescribe drugs of addiction to a drug dependant person 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 Patient Q was a drug dependant person. The Practitioner admits the events of paragraph 20. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 23 September 2011 and diagnosed severe low back pain with possible pathology, following a fall from a horse; b. He admits subparagraphs b, c and d. In relation to b, at the time of the first consultation, the patient was under the care of a neurologist. PATIENT R 21. The practitioner prescribed the schedule 4D drug Diazepam and the schedule 4 drug Codeine Phosphate + Paracetamol to Patient R on the dates and in the quantities set out in the schedule attached and marked R: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs. The Practitioner admits the events of paragraph 21. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 11 May 2012 diagnosing anxiety and depression; b. He admits subparagraph b but states that on 15 December 2014 he referred the patient to a psychiatrist Leanne Allen; c. In relation to subparagraph c, he discussed non-drug and other drug alternatives with the patient and reduced the dosage of Valium. PATIENT S 22. The practitioner prescribed the schedule 8 drug Morphine and the schedule 4D drugs Oxazepam and Diazepam to Patient S on the dates and in the quantities set out in the schedule attached and marked S: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Oxazepam and Diazepam) and section 79 (Morphine) of the PTG Act Regs; and d. without obtaining an authority to prescribe a drug of addiction (Morphine) to a drug dependant person in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient S was a drug dependant person. The Practitioner admits the events of paragraph 22. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 13 October 2011 and diagnosed chronic lumbar spine pain with paravertebral back muscle spasm, following a MVA; b. He admits subparagraph b, c. In relation to subparagraph c, he recommended reducing MS Contin dosages and non-drug alternative; d. He admits subparagraph d. PATIENT T 23. The practitioner prescribed the schedule 8 drug Morphine, the schedule 4D drugs Oxazepam and Diazepam and the schedule 4 drug Tramadol to Patient T on the dates and in the quantities set out in the schedule attached and marked T: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; and c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Oxazepam, Diazepam and Tramadol) and section 79 (Morphine) of the PTG Act Regs. The Practitioner notes that three dispensings of his purported prescriptions as set out in paragraph 23 do not equate with his clinical records. He also states: a. In relation to subparagraph a, this is admitted but adds that he following assessment diagnosed severe lower back pain due to pathology or paravertebral muscle spasm/strain; b. He admits subparagraph b but states that he referred the patient to the POWH Pain Clinic on 15/10/12, recommended the patient see a psychiatrist or psychologist on 24/1/13 and referred the patient to Norwest Psychology on 24/2/15, c. In relation to subparagraph c, he planned to wean the patient off MS Contin on 16 February 2012 and supplement with Tramadol. Valium was introduced on 8 March 2012 due to panic attacks and anxiety. MS Contin was ceased by 19 March 2012. PATIENT U 24. The practitioner prescribed the schedule 8 drug Fentanyl, the schedule 4D drug Diazepam and the schedule 4 drug Tramadol to Patient U on the dates and in the quantities set out in the schedule attached and marked U: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 of the PTG Act Regs; d. without obtaining an authority to prescribe a drug of addiction (Fentanyl) to a drug dependant person 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 Patient U was a drug dependant person; e. in an inappropriate combination; and f. by failing to contact the DASAS after being advised by a pharmacist that Patient U had forged a prescription on or around 25 October 2011. The Practitioner states that five of the dispensings as set out in paragraph 24 do not equate to his clinical notes. He also states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient who was visiting from interstate and diagnosed lumbar spine pathology and sciatica following a fall from a horse; b. He admits subparagraph b; c. In relation to subparagraph c, he ceased prescribing Valium after 24 August 2011 and as she was caught forging prescriptions for Durogesics on 25 October 2011, he stopped issuing her any prescriptions; d. He admits subparagraph d, e. In relation to subparagraph e, he refers to the response to subparagraph a and c above; f. He admits subparagraph f. PATIENT V 25. The practitioner prescribed the schedule 8 drug Oxycodone, the schedule 4D drugs Oxazepam and Diazepam and the schedule 4 drug Tramadol to Patient V on the dates and in the quantities set out in the schedule attached and marked V: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Oxazepam, Diazepam and Tramadol) and section 79 (Oxycodone) of the PTG Act Regs; d. without obtaining an authority to prescribe a drug of addiction (Oxycodone) to a drug dependant person 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 Patient V was a drug dependant person; e. in an inappropriate combination; and f. by issuing a further prescription for Diazepam and failing to contact the DASAS after Patient V admitted to being addicted to Oxycontin in the past and buying it on the street. The Practitioner admits the events of paragraph 25. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 16 August 2011 with neck and back pain after a fall. A CT Scan was ordered on 19 September 2011; b. He admits subparagraph b; c. In relation to subparagraph c, he regularly discussed alternatives to opioids and conservative treatment. Oxycontin was reduced from January 2012; d. He admits subparagraphs d, e and f; PATIENT W 26. The practitioner prescribed the schedule 8 drug Morphine and the schedule 4D drugs Oxazepam and Diazepam to Patient W on the dates and in the quantities set out in the schedule attached and marked W: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Oxazepam and Diazepam) and section 79 (Morphine) of the PTG Act Regs; d. without obtaining an authority to prescribe a drug of addiction (Morphine) to a drug dependant person 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 Patient W was a drug dependant person; e. in an inappropriate combination; and f. inappropriately on 12 March 2013 after being advised that Patient W was on the Opioid Treatment Programme. The Practitioner admits the events of paragraph 26. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient and diagnosed chronic severe back and hip pain with sciatica; b. He admits subparagraph b; c. In relation to subparagraph c, he trialled ceasing MS Contin and recommended reducing dosages and non-drug alternatives; d. He admits subparagraphs d, e and f. PATIENT X 27. The practitioner prescribed the schedule 8 drugs Alprazolam (from 1 February 2014) and Oxycodone + Naxolone and the schedule 4D drug Alprazolam (before 1 February 2014) to Patient X on the dates and in the quantities set out in the schedule attached and marked X: a. without performing an appropriate and adequate medical assessment prior to issuing the prescriptions; b. without making appropriate and timely referrals for specialist assistance; c. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 34 (Alprazolam before 1 February 2014) and section 79 (Alprazolam after 1 February 2014 and Oxycodone + Naxolone) of the PTG Act Regs; d. without obtaining an authority to prescribe drugs of addiction (Alprazolam and Oxycodone + Naxolone) to a drug dependant person 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 Patient X was a drug dependant person; and e. in an inappropriate combination. The Practitioner admits the events of paragraph 27. but states: a. In relation to subparagraph a, this is admitted but adds that he assessed the patient on 22 July 2011 and diagnosed anxiety neurosis with depressive features; b. In relation to subparagraph b, the patient was under the care of a psychiatrist; c. In relation to subparagraph c, he was aware of the need to wean the patient off Xanax and reduced the dosage; d. He admits subparagraph d, e. He admits subparagraph e. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (b) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to adequately maintain clinical records by: a. failing to sort and file the records that had been mixed together following a break in at his practice on or around 22 May 2012; b. failing to sort and file the records which had been damaged and mixed together following water damage to his practice on or around July or August 2014; c. maintaining more than one computer file for each patient; and d. using both computer and handwritten notes for the period between around May 2011 to early 2014 in circumstances where his hard copy handwritten notes were not filed alphabetically and where he would often commence a new patient file each time a patient attended, contrary to criterion 1.7.1 of the RACGP Standards for general practices (4th edition). 2. The practitioner failed to maintain adequate medical records in accordance with Schedule 2 to the Health Practitioner Regulation (NSW) Regulation 2010 for each of Patients A to F and H - Z in that the practitioner failed to adequately 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. a current medication list; iv. the measured alcohol intake; v. use of any diagnostic tools; vi. the results of any tests performed on the patient; and vii. any allergies. b. particulars of any clinical opinion reached by the practitioner; c. any plan of treatment for the patient; d. particulars of any medication prescribed; and e. sufficient information to allow another doctor to continue management of the patient's case. 14. The Practitioner admits that he is guilty of unsatisfactory professional conduct under Section 139B(1)(a) of the National Law. 15. The Practitioner admits the Background and the Particulars to Complaint Two. 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 material (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. PARTICULARS OF COMPLAINT THREE The Particulars of Complaints One and Two are relied upon and repeated, both individually and cumulatively. 16. The Practitioner admits that he is guilty of professional misconduct under Section 139E of the National Law. 17. The Practitioner repeats and relies on the responses to the Complaints above. The evidentiary material 1. A great deal of documentary material was tendered in the proceedings, the bulk of which contained the relevant clinical notes pertaining to the patients of the respondent who are the subject of these complaints, material provided by the Pharmaceutical Services Unit, copies of prescriptions written by the respondent and dispensed at various pharmacies, an expert medical report provided by Dr Gary Deed, and a statement provided by the respondent. In addition, a senior pharmaceutical officer with the Pharmaceutical Services Unit, Dr Deed and the respondent gave oral evidence. 2. We shall refer to this evidence to the extent that it is relevant to our determination of the proceedings during the course of these reasons for decision. 3. We note for completeness that in determining these proceedings we must be satisfied to the Briginshaw standard that we are comfortably satisfied on the balance of probabilities that the complaints and the particulars thereof relied upon by the complainant have been proven. Some important historical matters 1. We have not reproduced the schedules to the Complaint document which set out the dates upon which and the quantities of which the respondent engaged in the inappropriate prescription of drugs of addiction. Some reference to these matters will be made later when examining the circumstances of the patients. However, for present purposes it is sufficient to note that the period during which this conduct occurred dates generally from May 2011 to May 2015. 2. An investigation report of Mr Paul Smith of the Pharmaceutical Services Unit dated 19 August 2015 was created in response to a request from the HCCC arising out of complaints made by two pharmacists concerning the respondent's prescription of drugs of addiction. This report became evidence in these proceedings. Included within that report is a file note of Kim Dolan then Acting Manager/Principal Pharmaceutical Officer within the Inspections and Investigations branch of Pharmaceutical Services dated 8 March 2012. This file note records the substance of a telephone conversation which Ms Dolan had with the respondent at approximately 11:30 AM on 8 March 2012. The contents of that conversation as summarised by Ms Dolan are of critical significance for the determination of these proceedings and we set them out verbatim; I explained that his prescribing had come to the PSU's attention and of concern was that most of the patient's names that had been detected had previously or were currently on the methadone program and as such would be considered drug dependent persons and therefore his prescribing had been in contravention of the Poisons and Therapeutic goods legislation. I explained that OxyContin was a highly trafficable drug and had a high illicit value on the street and inappropriate prescribing by practitioners is how it gets onto the street. I explained that his prescribing was bad enough to bring to the attention of the Medical Council but as this was the first time he had been brought to the attention of PSU that I would counsel him, send him a warning letter and some guides. I provided him with a number of names of patients known to PSU, and that he MUST cease prescribing for them immediately. I explained that failure to heed my warning could result in him facing a medical tribunal for professional misconduct in the very near future. He thanked me for bringing this to his attention, he explained that he had recently taken over the practice and that this type of clientele had not been a problem before, he said they now are filling his waiting room. I explained that once word gets out that he is an easy touch; that they will come from far and near. He explained that many people present with letters or scans and he has called the previous doctors in a few cases but it may be that the letters are forgeries and wording in some cases is questionable. I explained that he must be diligent in his prescribing and can call PSU and the doctors shopper hotline but he should remember that he should never prescribe on request. 1. Ms Dolan wrote to the respondent at an address which he acknowledged in evidence was that of his practice by letter dated 3 March 2012, that date being an obvious error because the letter refers to her telephone conversation of 8 March, referred to above. The letter said in part "…. the Ministry of Health is deeply concerned that some drug dependent persons have been able to obtain various Schedule 8 drugs with a well-known potential for dependence, abuse and trafficking, by persuading doctors to prescribe quantities of these drugs for them, resulting in the illicit sales of prescription opiates "on the street"." The letter went on to describe that a patient presenting and requesting high-dose morphine or Oxycodone "may almost certainly be regarded as drug dependent" under the provisions of the Poisons and Therapeutic Goods Act. Furthermore Schedule 8 substances could not be prescribed to a drug dependent patient without prior written authority of the NSW Health Department. If such an authority had been issued to another doctor, only that doctor should prescribe that medication. The letter also pointed out that long-term prescribing of certain Schedule 8 drugs could only continue beyond two months to a non-drug dependent patient pursuant to an authority issued under the Act. The respondent was advised that "Long-term prescribing of Schedule 8 drugs should only be in accord with specialist pain clinic support and a clear and well-documented therapeutic plan." 2. This letter also referred to generally approved prescribing indications for the benzodiazepine group of drugs for the purpose of short term symptomatic relief of anxiety or insomnia. The respondent was advised to consider the prescribing guidelines available from the RACGP. 3. The letter also referred to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 which prohibited, relevantly, a medical practitioner from issuing a prescription for a restricted substance "in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances." The respondent was informed in the letter that the abuse of drugs of addiction and benzodiazepines and the trafficking in prescriptions and drugs obtained on prescription had become "a major problem." 4. Finally, the letter enclosed copies of a number of publications issued by NSW Health Pharmaceutical Services Branch entitled "Recognising and handling drug dependent persons notes for medical practitioners", "Recognising and handling patients liable to abused benzodiazepines and who are likely to abuse such drugs", "Requirements for an authority to prescribe drugs of addiction under section 28 of the Poisons and Therapeutic Goods Act", "Guidelines for the management of patients with chronic non cancer pain", and lists of Schedule 4 Appendix D drugs and Schedule 8 drugs of addiction. Also enclosed was a "Guide to poisons and therapeutic goods legislation for medical practitioners and dentists" and a sample form for an application for an authority to prescribe a drug of addiction. 5. There is a file note of a further conversation between Ms Dolan and the respondent on 23 May 2012 concerning his prescribing pattern for patient W. Ms Dolan noted that this patient had previously been on a methadone program, was therefore drug dependent and the respondent would need an authority from PSU to continue to lawfully prescribe for him. She also asked the respondent why he had been providing private scripts for MSContin and the respondent told her that he was, as she noted, "trying to deter the selling of prescriptions on the street by making him pay for them." Ms Dolan explained to the respondent that if the patient sold the drugs for $100 a tablet the patient would not care whether he obtained the drugs on a concession card or by paying full price. 6. Ms Dolan also explained to the respondent that he had been prescribing benzodiazepine drugs to this patient long-term and that they were intended for short-term use only. The respondent replied that he only prescribed them when they were due, asking whether "due" meant that there was nothing left in the prescription or the patient was asking for them. She told him that it was wrong to provide scripts on demand and the respondent was required to ensure that there was a therapeutic basis for the prescription. 7. There was a further discussion which centred around an admission by the respondent that the patient was drug dependent. He was advised to cease prescribing for that patient until he had obtained an authority with pain clinic support. Conclusions from the communications between the respondent and Kim Dolan of the Inspections and Investigations branch of Pharmaceutical Services. 1. We conclude from our discussion of the interactions between the respondent and Ms Dolan referred to above that as and from, at the latest, May 2012 the respondent should have been in absolutely no doubt concerning; 1. the requirement to obtain an authority before prescribing drugs of addiction to a person who was drug dependent 2. the need to establish a therapeutic basis for the prescription of drugs of addiction, both Schedule 8 and Schedule 4D 3. the need to resist demands of drug seeking patients 4. the fact that patients in receipt of a continuing supply of drugs of dependence may be selling them on the street as part of the illicit drug trade 5. the dangers to the health of his patients if he continued to prescribe inappropriate quantities of drugs of dependence 6. the need to prepare a treatment plan and to refer for specialist treatment 7. the threat of complaints against him alleging misconduct if he continued to inappropriately prescribe drugs of addiction. 1. It is against this knowledge that we now consider the circumstances of the patients of the respondent which are the subject of these proceedings. Because of the concessions made by the respondent, it is unnecessary that we deal with the complaints and particulars thereof with respect to most of the patients in any great detail, and the same observation applies to Complaint Two. However, it is necessary that we describe the admitted conduct of the respondent in some little detail, as well as determining the outstanding matters which are controversial for the purpose of determining whether the respondent is guilty of unsatisfactory professional conduct or professional misconduct, albeit that he has conceded such guilt. Patient W 1. Before doing so, however, we refer to the circumstances of patient W which were the subject of the conversation between the respondent and Ms Dolan on 23 May 2012. The Schedule of medications prescribed by the respondent for this patient indicates that he first prescribed Schedule 4D medication on 8 July 2011 and continued to prescribe this medication in inappropriate quantities and at inappropriate intervals until 21 May 2012. Thereafter, the respondent issued private scripts for this patient for benzodiazepines, namely Oxazepam and Diazepam, Schedule 4D drugs, on 13 September 2012. He again issued scripts for both these drugs on 27 November 2012, 11 February 2013 and 12 March 2013, although these two latter scripts were through the PBS system showing that on each occasion he prescribed 25 Oxazepam and 50 Diazepam of varying strengths. A number of these scripts post-date the respondent's conversation with Ms Dolan. 2. The information sheet provided by Ms Dolan to the respondent dealing with Benzodiazepines sets out circumstances in which they may be abused by patients, described typical drug-seeking behaviour and referred also to the possible consequences of prescribing. This sheet clearly set out the requirement that these medications, in common with others, may only be issued for a purpose that accords with a recognised therapeutic standard of what is appropriate in all the circumstances. There is also reference to a requirement to make a notation, usually in the patient's file of the date of each prescription, the drug name, strength and quantity, the number of repeats and directions for use as written on the prescription. 3. The clinical notes with respect to this patient are scant, as is generally the case with all patients. They indicate that the patient was born in 1948. What appears to be an initial notation of patient details contains a warning "benzo/opioid abuse." The first notation made 19 August 2011 with respect to the circumstances of the patient states; "Chronic back and hip pain, tried to reduce MS Contin but pain returned." There is a statement that the patient was given a prescription for MS Contin SR 100 mg 1 bd. The only information concerning this patient is that which is contained in the clinical notes. Despite the "warning" concerning drug abuse, there was no notation to the effect that the patient could have been drug-seeking. In commenting on these notes, Dr Deed said that the respondent had failed to conduct an appropriate assessment of the patient prior to prescribing this high dose of MS Contin. There is no note of any physical examination before this medication was prescribed, and no indication that the respondent attempted to seek past medical records before doing so. There was no notation of any discussion about risks to occupational functioning, driving and self-care associated with taking drugs of this kind or of any alternate management options including allied health involvement. The respondent did not order any further investigations concerning any physical condition from which the patient was suffering. 4. There is reference to a physical examination conducted on 30 September 2011. The respondent had previously noted that the patient complained of chronic lumbar spine pain with sciatica radiating to the right hip and leg. A CNS examination revealed nothing distinctive in the arms or legs except, significantly, increased tone in the right leg. The respondent was asked by the Tribunal whilst giving oral evidence whether this might indicate an upper motor neurone lesion which was a matter of importance. The respondent replied that it was, and that he should have investigated it. We regard this as being a matter which goes to the respondent's general competence as a medical practitioner. 5. The respondent commenced prescribing Diazepam 2 mg twice a day on 14 October 2011, noting that he should cease taking MS Contin "for the moment." Notwithstanding this the respondent continued to prescribe opioids. Dr Deed noted that on 25 November 2011, without making any clinical notation, the respondent commenced prescribing Valium 5 mg, and Oxazepam 30 mg twice a day in addition to opioids, was added on 24 February 2012. No relevant multidisciplinary management plan had been prepared and the respondent waited until 13 September 2012 before requesting a radiology examination. Dr Deed said that the prescriptions were initiated "in a context of inadequate clinical assessment and management planning", that they were thereby inappropriate and the respondent's conduct was significantly below the relevant standard reasonably expected of a practitioner of an equivalent level of training or experience. 6. Dr Deed said that the initial prescriptions of MS Contin for this patient "exceeded by double, advice in guidelines on safe oral daily doses." In addition, as conceded by him, the respondent had failed to obtain the appropriate authority under section 28 of the PTGA. Furthermore, the respondent had prescribed Benzodiazepines for this patient in combination with Schedule 8 drugs. It is well-known that this produces an increased risk of respiratory depression. 7. Overall, it was the opinion of Dr Deed that this patient did exhibit drug-seeking behaviour, particularly as the respondent had noted on 12 March 2013 that the patient was "becoming emotional and verbally abusive" stating that that would be the last script issued. Notwithstanding this statement the respondent continued to issue a further prescription for diazepam and Oxazepam even though by that time he had been clearly informed that this patient was on an Opioid Treatment Program. The respondent had failed to react appropriately. 8. For completeness, we note that Dr Deed was highly critical of the state of the respondent's clinical notes. He said; "There is limited examination and collateral history relevant to the commencement of ongoing prescribing of opioids and long-term Benzodiazepines for the main diagnosis of "chronic severe back and hip pain due to probable lumbar spine pathology." There are no past clinical records, specialist assessments to support the diagnosis and let alone supporting the patient requiring prolonged opioids/Benzodiazepine management of this condition by Dr Qadri alone. The recorded health summary does not include allergies, a summary of alcohol intake or a medication list or comorbid diagnoses or warnings regards occupational/life hazards of the use of the medications. Due to the scant notations by Dr Qadri, plus the absence of a clear integrated management plan related to the major diagnosis, another practitioner would need to re-evaluate and comprehensively assess this patient to continue to care for this patient and not rely on this notes (sic)" 9. We have previously set out the response of the respondent. He said in mitigation that he had assessed the patient and diagnosed chronic severe back and hip pain with sciatica. However, as Dr Deed commented, the medical assessment conducted was neither appropriate nor adequate, for the reasons which we have summarised above. He further stated in mitigation that he had trialled ceasing MS Contin and recommending reducing dosages and non-drug alternatives. Again, on the evidence of Dr Deed the steps which he took were too little and too late. Furthermore, the respondent had failed to monitor and control the patient's medication as prescribed by him. This is particularly so given the underlying background of the information conveyed to the respondent by Ms Dolan concerning this patient in May 2012. 10. We are comfortably satisfied that the particulars of the complaints made with reference to this patient have been established. The remaining patients 1. We now proceed to deal with the circumstances of each of the other patients referred to in Complaint One. All but patient E are the subject of either some contest or comment by the respondent. Patient A 1. This patient was a male aged 38. The health summary sheet in the respondent's clinical records contained a notation of "Warnings doctor shopper." They first record a consultation on 15 August 2011. They note complaints of chronic severe pain in the neck radiating to the left arm and right sided severe sciatic pain with a query that these were the consequences of a work-related injury in 2009 said to be confirmed from a letter from Associate Professor Bodel. That letter is dated 15 October 2009 and refers to a motor vehicle accident on 5 January 2009. In essence, the letter recommended a decompression operation on the cervical spine for the treatment of moderate to large intervertebral disc protrusion as the only means of resolving the patient's problem and noted that the patient sought such an operation. There is no note of the respondent having ascertained whether that operation was carried out. In his evidence the respondent could not recall making any contact with Associate Professor Bodel. The notes contain a superficial reference to a physical examination with a reference to paraesthesia in the left arm and right upper leg. 2. The respondent prescribed a Durogesic 75 MCG/HR patch to be changed every 3 days. It was put to him in cross examination that this was a relatively high dose and he was asked whether he knew what the upper limit was to be taken over 3 days. He said that he thought it was 150 mg but then conceded that he did not know. It was put to him that if the patient was not already an opioid user, prescribing a patch would be dangerous. He replied that he did not know whether the patient was already on drugs at the time and that he should have checked whether it was appropriate for the patient to use them. The respondent was then taken to his prescribing record which indicated that commencing 25 May 2011 and until 5 August 2011 he had issued 8 scripts for Fentanyl and one for Nitrazepam, for which no clinical notes had been recorded. He thought that those clinical records may have been missing. 3. The clinical notes of 27 August 2011 refer to advice given for physiotherapy, hydrotherapy and acupuncture treatments for the management of chronic pain but that the patient stated that these had been unsuccessful in the past. He continued to prescribe the Durogesic patch. On 6 September 2011 there is a reference to weaning the patient off opiates and prescribing Benzodiazepine to help him sleep. A patch of a lesser strength was prescribed together with Temazepam. On 20 September 2011 there was a notation of a plan to wean the patient off Durogesic and to reduce the dose. There is a notation that the patient "seems to have undiagnosed anxiety/depression and associated insomnia secondary to chronic long-term pain… states has had counselling in the past with little effect, told him I can refer to psychological counsellors, said he will consider it…. advised on relaxation techniques, meditation and herbal remedies such as St John's Wort, said would try the latter". Notwithstanding the reference to reducing the dose, the respondent continued to prescribe Durogesic patches at the same level, albeit that this was lower than the original level prescribed. 4. On 5 October 2011 the respondent noted that the patient was being weaned off opiates and that he smoked marijuana to calm himself. He issued a prescription for a further reduced Durogesic patch. The patient again attended on 14 October 2011 requiring another patch. The respondent refused to do so because his next script was not due for another 6 days. Importantly, there is a reference to "opiate dependence" as being the reason why he was consulted by the patient. The patient continued to attend on the respondent until 3 April 2012. During this period he was prescribed further patches and Benzodiazepines. The respondent received a letter from the Pharmaceutical Benefits Branch dated 28 March 2012 indicating that the patient had been identified through the Prescription Shopping Program as having received scripts for drugs of addiction concurrently from 10 prescribers in an amount which potentially exceeded his medical needs. On 3 April 2012 the respondent noted that he would not further prescribe Schedule 8 or Benzodiazepine medication for this patient. 5. In cross examination, the respondent was taken to a prescription for Temazepam issued on 6 September 2011 and which was a private prescription. He said, consistently with evidence about other patients, that he issued private scripts because they cost the patient more and this would act as a deterrent to the patient. Of course, such an attitude is inconsistent with later advice given to the respondent that patients who were selling drugs did not really care whether they paid more for them. Furthermore, there is no indication in the records of this patient that the issue of a private prescription had any deterrent effect on the patient. We observe that the issue of private prescriptions lessens the risk of detection through the PBS scheme, although the respondent vehemently denied this because he said that he assumed that the relevant authorities had access to his private scripts in any event. 6. In his evidence the respondent conceded that he knew that as at 5 October 2011 that this patient was opiate dependent. Nevertheless he did not refer him for specialist treatment. He said he should have been more forceful with the patient and given him a referral. In all he provided prescriptions for drugs of addiction to this patient for a period of 7 months. 7. Dr Deed was highly critical of the respondent's treatment of this patient. The respondent had failed to conduct an appropriate assessment prior to prescribing Fentanyl and, later, Temazepam. There was no notation of confirmation of a diagnosis and no discussion on other intervention or procedures or investigations as to the source of the patient's professed continuing pain. Importantly, there was "no record of a discussion of the risks, side-effects and contraindications to the use of listed drugs …. nor any discussion regards opioid and benzodiazepine combinations. There is no record of assessment of opioid dependence identification if the patient is drug dependent (past or present). There is no record…..of contact with the NSW Drug and Alcohol Specialist Advisory Services or self initiated contact with the Doctor shopping Medicare service." Furthermore, there was no record of the respondent having sought statutory approval to continue to prescribe drugs of addiction after a period of two months. In addition, the respondent had failed to make appropriate and timely referrals for specialist assistance and there was no appropriate ostensible therapeutic purpose for the continued prescription of drugs of addiction. 8. Importantly, in reviewing the prescribing history of the respondent to this patient Dr Deed commented that the respondent had prescribed excessive quantities of the drugs. He said that "On 27 August 2011 – the dose of 75 mcg/hr fentanyl exceeded recommendations to limit doses of opioids to maximum of an oral Morphine equivalences of 100 mg/day (equivalence = 225 mgs). This was reduced to 50 mcg/hr (equivalence = 150 mgs) on 6 September but a benzodiazepine was added. Documentation of "weaning" off opiates is noted but the total dosage reduction achieved at 3 months remained static from 9th December at 12mcg/hr fentanyl (equivalence 75 mgs) at which he remained. Tramadol SR 100 mgs was added on 12 March taking his equivalence dose back to 155 mgs a day. Despite clinical records stating "weaning" off opioids was to occur there was no evidence this was achieved. No specialist assistance was sought to achieve this goal." In addition, it was not appropriate for the respondent to have prescribed Benzodiazepines in combination with Schedule 8 drugs. Finally, Dr Deed was highly critical of the lack of detail contained in the respondent's clinical notes. 9. In the opinion of Dr Deed the conduct of the respondent was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 10. We have noted the formal response of the respondent to the particulars of this complaint, which are admitted. We reject the suggestion by the respondent that the medical assessment carried out by him on 15 August 2011 was appropriate, for the reasons outlined above and in particular referred to in the evidence of Dr Deed. There is no evidence that the respondent engaged in any intellectual sense with the contents of the report of Associate Professor Bodel. We also reject the response of the respondent concerning the relevance of the reduction in the dosage of Fentanyl patches because this was accompanied by the prescription of Benzodiazepines, which did not lead to an overall significant reduction in the inappropriately high levels of these drugs which had been prescribed by the respondent, and which were the subject of comment by Dr Deed which we have extracted above. 11. We are comfortably satisfied that the particulars of the complaints with respect to the treatment of this patient have been established. Patient B 1. This 32-year-old female patient attended on the respondent on 7 October 2011. She gave her principal address as being in Victoria and said that she was visiting relatives in Sydney for a short time. The clinical notes record a statement by her that she had a lumbar spine disc bulge after a fall 3 years previously and was taking OxyContin 40 mg twice a day. She was asked to bring in any scans or specialist letters and was informed that the respondent could only prescribe OxyContin for a short period as he was not her regular doctor and he would only give her a maximum of 30 mg OxyContin. During the period 7 October 2011 to 22 February 2012 the respondent prescribed 168 Oxycodone 30 mg tablets and 20 analgesics containing 30 mg Codeine Phosphate. 2. In his reply, the respondent conceded all of the events and the particulars of the complaint. However, he said that he performed an assessment on 7 October 2011 and diagnosed lumbar spine pathology. Dr Deed rejected this assertion because there was no evidence in the clinical notes that the respondent had conducted a lumbar musculo-skeletal assessment. Furthermore, he made no attempt to contact the treating medical practitioners and did not insist that any supporting documentation be given to him. 3. In the same manner, Dr Deed rejected that part of the reply of the respondent which referred to his reduction of the dose of opioids at subsequent consultations. He said; "The medications of oxycodone prescribed are on an average at 90 mgs of oral morphine equivalence – which is close to the maximal oral morphine dose considered by guidelines to be safe…" 4. In oral evidence the respondent conceded that he had relied on the history given to him by the patient, that he should have conducted a thorough physical examination himself and that he should not have prescribed OxyContin without evidence of a bulging disc. Furthermore, he should have insisted on the patient producing evidence of her prior prescriptions and should have made contact with her general practitioner in Victoria. 5. We are comfortably satisfied that all particulars of the complaints which apply to this patient have been made out. Patient C 1. The clinical notes for this 39-year-old male patient commence on 8 August 2011. He attended because of back pain and was prescribed OxyContin 20 mg to take one daily as required. Notwithstanding this, there is a record that the respondent commenced prescribing Schedule 8 drugs to this patient on 15 July 2011. He continued to prescribe Schedule 8 and Schedule 4 drugs to this patient until 29 September 2014. During this period the patient was prescribed a minimum of 952 Oxycodone 20 mg, 240 Oxycodone 5 mg, 20 Tramadol 100 mg and 20 Codeine Phosphate 30 mg. 2. There is no record in the clinical notes of the respondent having initially carried out any appropriate assessment of the patient for the purpose of determining why he was suffering from back pain as alleged by him. Furthermore, there is no record of assessment of opioid dependence. The respondent did not refer the patient for specialist advice. 3. In his reply the respondent said that he did perform an assessment of the patient "at the latest on 23 January 2012" when he confirmed a diagnosis of cerebral palsy and lumbar spine injury. However, this is not borne out by the clinical notes for that date which merely make a notation "cerebral palsy with spasticity in arms and legs and chronic lower back pain." This is despite a notation that the patient works as a manual labourer and a maintenance handyman which exacerbates his symptoms, and that he had been involved in several fights. The respondent recommended a trial of acupuncture to see whether that relieved muscle stiffness and pain. There is no indication of the nature and extent of any physical examination conducted by the respondent on that date. We reject the explanation proffered by the respondent. 4. In oral evidence the respondent was taken to the record of prescriptions issued by him for this patient. On 23 April 2012 the respondent issued 2 separate prescriptions for 20 mg of OxyContin, one on the PBS for 28 tablets to be taken twice a day as required for pain and the other a private prescription the quantity of which is not shown. He was unable to provide any satisfactory explanation as to why this patient had been given both of the scripts on the same day and conceded that the patient could have sold them on the illicit drug market. 5. On 31 May 2012 a prescription was issued for 28 OxyContin 20 mg tablets to be taken 2 each day for pain as required. However, on 7 June, that is 7 days later the respondent issued a further prescription for 28 tablets of the same medication, and further prescriptions for the same quantity on 13 June, 20 June, 26 June, 2 July, 4 July, 11 July, 12 July, 16 July, 20 July, 23 July, 30 July, 8 August, 13 August, and 20 August, 2012. The respondent was unable to proffer any explanation why he issued these prescriptions at these intervals. Quite clearly, either the patient was overdosing or he was selling the excess drugs on the illicit market. 6. On 17 May 2013 the respondent commenced issuing prescriptions for this patient of 20 Endone 5 mg to be taken one a day. He continued to issue prescriptions of the same drug to this patient at regular intervals until 29 September 2014. During this time the dose changed and varied in the main between one tablet a day, two tablets a day and three tablets a day. We observe without the necessity of engaging in a detailed analysis of the dates of each prescription that on many occasions they could not be justified on the basis of only providing prescriptions as and when they became due having regard to consumption in accordance with the directions given by the respondent to the patient. Again, either the patient was overdosing or he was selling the excess drugs on the illicit market. 7. It is quite clear that the respondent was aware, at least in 2012 following the information provided by Ms Dolan that he required authority to continue to prescribe drugs of addiction for this patient, but he neglected to do so. 8. Based on the concessions made by the respondent, and having regard to the confirmatory opinion of Dr Deed which we have not set out, we are comfortably satisfied that the particulars of complaint with respect to this patient have been made out. Patient D 1. The clinical notes of the respondent indicate this 55-year-old male patient was suffering from skin lesions on his scalp and shoulders with smaller ones on his arms. The initial notation in the clinical records refers to a consultation on 27 August 2011. There is no indication of any examination or history and there is only a simple recording of a diagnosis of anxiety disorder and "counselled on relaxation techniques." A prescription for Xanax was issued. Thereafter the patient attended until 1 August 2014. The clinical notes do not accord with the period of recorded prescriptions for this patient. During the period 25 June 2011 and 5 September 2014 the respondent prescribed a number of Schedule 4 D drugs including 2150 Diazepam 5 mg, 75 Diazepam 2 mg, 20 Alprazolam 1 mg and 100 Alprazolam 2 mg. 2. Dr Deed was highly critical of the respondent's diagnoses of anxiety disorder, insomnia or depression which are referred to, to varying degrees in the clinical notes. There was no recording of symptoms appropriate for the prescribing of these drugs of addiction in these quantities over this period. There was no suggestion of any documented plan incorporating non-pharmacological strategies including specialist referral to support the long-term use of Benzodiazepines. On 25 November 2011 the patient told the respondent that his bag containing his medication had been stolen on a train and that he required a further prescription for Valium. In the opinion of Dr Deed matters of this kind are an indication of drug-seeking behaviour and should be viewed with some suspicion. In his evidence the respondent agreed that this should have given rise to suspicion on his part, especially as he had unsuccessfully endeavoured to have weaned the patient off Valium by reducing the dosage, but had eventually increased it. The respondent conceded that he had not managed this patient well and that he had not been forceful enough with him. The respondent also conceded that in hindsight it was possible that this patient was a drug dependent person. 3. In his reply the respondent said that he had diagnosed an anxiety disorder due in part to painful skin lesions on the scalp. However, there is no reference to any skin lesions in the clinical notes on 27 August 2011 and, and, as Dr Deed said, there is no record of any indicia of any symptoms which would assist in a diagnosis of anxiety disorder. We reject the assertion of the respondent as mitigating in any way the particulars of this complaint which refer to this patient. We are comfortably satisfied that those particulars have been made out. Patient E 1. This 34-year-old female patient who lived in a remote country town in New South Wales received scripts for Fentanyl patches on 17 and 31 May, 23 June and 19 July 2011. There is a notation in her clinical records that she was found in the staff area on 17 May 2011, there was a suspicion she may have stolen scripts, she refused to open a bag, verbally abused staff and left the surgery. When she attended on the respondent on 31 May 2011 she apologised for her behaviour and claimed to have been emotional after being assaulted by her partner. There is a notation that she was depressive with low mood, loss of appetite and insomnia. The respondent counselled her, and gave her acupuncture for lower back pain. On 23 June 2011 she again attended and was given acupuncture for lower back pain and this was repeated on 19 July 2011. 2. At first the respondent said that he had not given this patient any scripts and that they must have been stolen. However, in oral evidence he conceded that by reference to the numbers on the scripts they were not forgeries. The respondent said that he suspected that this patient was drug-seeking and that he should not have allowed her back into the surgery and given her any more scripts. 3. Dr Deed was highly critical of the conduct of the respondent with respect to this patient. There was no indication of any clear diagnostic examination in the clinical records to support a diagnosis of chronic lumbar pain with sciatica. He said; "At a minimum, a more comprehensive history outlining the clinical circumstances for the possible diagnosis. There is no record of seeking past records from other or previous practitioners to support the diagnosis, and no investigations were initiated to support the diagnostic framework. There is no collateral history to ascertain any risks of concomitant medication use, alcohol intake or past treatment for drug dependency." Accordingly, there was no appropriate context in which to prescribe Fentanyl patches, especially in the quantity prescribed which was equivalent to oral Morphine of 225 mg per day. This exceeded the recommended safe upper limit of 100 mg. In these circumstances this represented "a high-risk prescribing quantity on a background of minimal records of appropriate assessment, management and specialist support." Furthermore, it was inappropriate to prescribe this medication to a person who lived many hundreds of miles from his practice and without the requisite authority. 4. We are comfortably satisfied that the particulars of the complaints as they refer to this patient have been established. Patient F 1. This 68-year-old male patient was suffering from terminal cancer. It is clear that he was under the care of a number of specialists. During the period 2 February 2012 and 8 October 2014 the respondent prescribed a large number of Schedule 4 and Schedule 8 drugs for this patient. Of concern is a letter from Dr Catherine Crombie a Staff Specialist oncologist dated 24 April 2014 which refers in part to OxyContin medication being taken by the patient. She recommended that he cease taking OxyContin but could continue to use Endone. Notwithstanding this, there is a record of the respondent prescribing OxyContin and Oxynorm to this patient in August and October 2014, with no accompanying clinical notes explaining why he did so. 2. The criticism of the respondent in his care of this patient made by Dr Deed is essentially based on the sparse nature of his clinical notes and his failure to record a number of significant matters dealing with findings on examination, his assessment of the health of the patient and the reasons for the continuing issue of prescriptions. Dr Deed therefore assumed, correctly in our opinion, that the respondent had failed to conduct an appropriate examination, make an appropriate assessment of the health of the patient and have a reasoned basis for the continuing prescription of drugs of addiction. Accordingly, the explanation proffered by the respondent does not mitigate his overall misconduct with respect to this patient as particularised in the complaints, and we are comfortably satisfied that the particulars have been made out. Patient G 1. This 43-year-old male patient was seen by the respondent on 9 September 2011 complaining of an itchy rash and pain in the lumbar spine area. The patient told him that he had been seen by a neurosurgeon and would supply details, and that he had used MS Contin in the past when non-opioid medication was not effective. There is no indication in the clinical notes of the respondent carrying out any physical examination or making any enquiries concerning the patient's back condition. Nevertheless, he prescribed for him MS Contin 100 mg to be taken once a day. In the opinion of Dr Deed, this was an excessively high initial dose unwarranted in circumstances where the respondent had not confirmed any particular diagnosis and had not made enquiries or received confirmatory evidence from any prior treating medical practitioner. Notwithstanding that the respondent varied the dose, he issued scripts for 28 MS Contin tablets on 8 July, 8 August, 29 August, 9 September, 21 September, 18 October and 23 November 2011. In the opinion of Dr Deed there was no justification for these prescriptions. Certainly, as conceded by the respondent he was not authorised to continue to prescribe this drug beyond a period of 2 months. 2. In his reply the respondent asserted that he assessed the patient on 9 September 2011 and diagnosed severe lumbar spine pain due to disc bulges at the L2 – 4 levels. There is simply no evidence that he did so. 3. In all the circumstances we are comfortably satisfied that the particulars of complaint made with respect to this patient have been established. Patient H 1. The first notation of the treatment of this 45-year-old male patient occurred on 17 May 2012. It should be noted that the patient gave his address as Gosford, a considerable distance from the respondent's practice. The patient stated that he was suffering from anxiety and depression as a result of a recent marital breakup. He said that he had counselling and antidepressant medication previously with little effect but had been helped before by benzodiazepine medication. There is nothing in the clinical notes of the consultation that day which indicates that the respondent interrogated the patient concerning his professed condition or that he conducted any relevant examination or made any diagnosis. The respondent prescribed Valium and Serepax medication. The patient's third attendance on the respondent occurred on 4 October 2012 when he complained of increasing anxiety and panic attacks and asked that his current dose of Benzodiazepine medication be increased. There is a note that the respondent called the doctor shopper line and the Blacktown Methadone Clinic neither of which was aware of this patient. He agreed to increase the dose of Benzodiazepine medication. Between 17 May 2012 and 29 January 2015 the respondent issued 400 scripts of Diazepam 5 mg and 75 scripts of Oxazepam 30 mg to this patient. 2. In his report, Dr Deed was highly critical of the respondent. The respondent had failed to conduct any appropriate assessment of the patient before prescribing these drugs of addiction, he had not recorded any diagnosis made by him, he had not considered any other treatment than the prescription of these drugs and had not referred the patient for specialist assistance. In these circumstances there was no proper therapeutic basis for the prescriptions issued. Furthermore, it was inappropriate to repeatedly prescribe Benzodiazepines for a patient with a permanent residential address a long distance away from his practice. In the opinion of Dr Deed this patient exhibited drug seeking behaviour which the respondent should have detected. 3. In his oral evidence the respondent acknowledged that he should have referred this patient to a psychologist or psychiatrist, and that his distant place of residence should have concerned him. He also acknowledged that he had issued a large number of private scripts for this patient. There was no record of the quantity prescribed. The respondent endeavoured to explain this by saying that he used, what he called, a flawed logic because the scripts would have been more expensive and thus provided a deterrent to the patient. We wonder how the respondent could have persisted with this line of reasoning given that the patient continued to attend upon him for more private prescriptions of these drugs of addiction. 4. In his reply the respondent said that he did assess the patient on 17 May 2012 as suffering from anxiety and depression with insomnia. This is inaccurate, because the clinical notes mainly record the complaints made by the patient but do not record any diagnosis made by the respondent. The respondent suggested by way of mitigation that the patient was under the care of a counsellor, but not a specialist and that he had planned to reduce the medication from 6 December 2012. Furthermore, he had checked the doctor shopper line and the Blacktown Methadone Clinic. We wonder why he had made his enquiries of the Blacktown Methadone Clinic when the patient lived in Gosford. In any event, whilst these are mitigating factors, they are also indicative that the respondent harboured some suspicion that this might be a drug seeking patient and highlight the inadequate response of the respondent to dealing with such a patient. 5. In all the circumstances we are not persuaded that these mitigating factors impact in any way on the establishment of the particulars of complaints concerning this patient. We are comfortably satisfied that they have been established. Patient I 1. This 47-year-old male patient attended on the respondent on 7 June 2012 complaining of extreme anxiety and insomnia as a result of a relationship problem with his partner. There is a notation "trial benzos for next few months" and prescriptions were issued for Valium and Serepax tablets. Between 7 June 2012 and 20 March 2015 the respondent prescribed a minimum of 1000 Diazepam 5 mg, 50 Diazepam 2 mg, and 350 Oxazepam 30 mg. He also issued a prescription for Tramadol 50 mg but there is no record of the quantity prescribed. 2. Dr Deed was unable to find in the clinical notes any diagnosis made by the respondent which would justify prescribing these drugs of addiction to this patient. In addition, there is no adequate documentation of any diagnostic assessment made by the respondent or the discussion of non—pharmacological approaches. In addition, the respondent had failed to make any timely referral for specialist assistance. In the circumstances there was no appropriate therapeutic purpose for their prescription. 3. Dr Deed noted that this patient lived some considerable distance from the respondent's practice and this was another factor which should have militated against the continuing prescription of these drugs to this patient. Whilst there was some reference to attempting to wean the patient off these drugs, no adequate attempt was made to do so. 4. In his oral evidence the respondent said that he should have referred this patient to a psychiatrist at least by September 2013. When confronted with the issue of a script for 50 days' supply of Valium on 7 June 2012 and a further prescription for 50 tablets on 5 July 2012, the respondent was unable to proffer any explanation. 5. The respondent acknowledged in evidence that the drugs prescribed by him were for short-term use only and that they were dangerous, yet he had continued to prescribe them for a lengthy period. 6. The respondent, in his reply, advanced as mitigating factors a professed diagnosis of extreme anxiety and insomnia on 7 June 2012, a suggestion made by him to the patient to see a psychologist in June 2012 and in March 2014, the fact that he had verified that the patient was not on the Medicare Prescription Shopping program and that he had planned to wean the patient off Benzodiazepines as at January 2014. We reject the assertion that the respondent made any appropriate diagnosis on 7 June 2012. The other mitigating factors do not detract from the overall establishment of the particulars of complaints applying to this patient and we are comfortably satisfied that they are established. Patient J 1. The first clinical note concerning an attendance by this 38 year old female patient is dated 15 August 2011. Apart from referring to the issue of a prescription for Serepax, the only other notation is "counselling for anxiety/depression". In his reply, the respondent said that although he admits that he did not perform an appropriate medical assessment, he relied in some way on the fact that he had provided counselling for anxiety. As Dr Deed commented, it was necessary for the respondent to provide "a documented diagnostic assessment" using assessment tools which are available for conditions of this kind and so as to exclude any comorbidity such as depression. Furthermore, there was no notation to support the prescription of Benzodiazepines. 2. At a consultation on 23 November 2011 the respondent prescribed Valium in addition to Serepax. No reason for doing so is contained in the notes. As at 24 January 2012 the notes reveal that the respondent told the patient that he would not prescribe any further Valium for her apart from the script which he issued that day. Thereafter the respondent continued to prescribe Serepax, sometimes increasing and sometimes reducing the dose. 3. As at 24 November 2014 the respondent noted that the patient was continuing counselling with a church pastor but continued to have episodes of panic/severe anxiety. In addition, she said she was suffering from neck and shoulder pain after heavy lifting. On that occasion the respondent again prescribed Valium in addition to Serepax. He continued to provide prescriptions for Valium and on 2 February 2015 he referred her to a psychologist. The last attendance noted in the records is 1 July 2015 when the patient again requested Benzodiazepine medication for recurring anxiety which he refused to provide to her. Of course, by this time the respondent was aware of an investigation being conducted by the complainant into his prescribing record. 4. In oral evidence the respondent conceded that he should have referred this patient for professional counselling and assistance prior to doing so some 3 ½ years after he commenced treating her. He conceded also that he ceased prescribing Benzodiazepines because of the investigation being conducted by the complainant although he said that by late 2014 he was trying to wean her off this drug. However, there was no reduction in the dose which he prescribed and no reference in the clinical notes to any attempt to wean her off these drugs in late 2014. 5. Dr Deed was highly critical of the treatment afforded to this patient by the respondent. He had failed to carry out a proper documented diagnostic assessment, he had failed to provide timely referral to a psychologist, in all the circumstances there was no appropriate therapeutic purpose for the prescription of Benzodiazepines over many years and this indicated the absence of a comprehensive management plan. Furthermore, Benzodiazepines are intended for short-term use only. The respondent should have assessed this patient as exhibiting drug-seeking behaviour. 6. In our opinion the matters relied upon by the respondent in mitigation of this misconduct do not detract from a finding that we are comfortably satisfied that the particulars of this complaints with respect to this patient have been established, and we so find. Patient K 1. This 47-year-old male patient lived on the central coast of NSW, a great distance from the respondent's practice. Clinical notes of an attendance on 4 October 2012 indicated that the patient had recently been released from jail, suffered from an anxiety disorder and had minimal social supports. These notes contain no diagnosis or reference to any assessment conducted by the respondent. The patient was prescribed Valium and Serepax. The patient continued to attend on the respondent on a number of occasions and continued to receive prescriptions for Serepax and Valium. On 3 April 2013 there is a notation of a plan to reduce the Benzodiazepine dose because of the risk of addiction from long-term use. The respondent ceased prescribing Serepax but continued to prescribe Valium with an increased dose until the last noted attendance on 10 February 2015. There are notations in the interim of a plan to wean the patient off Benzodiazepines by the end of 2014, later extended to early 2015, but this did not occur. The patient refused to attend on a psychologist. 2. In his oral evidence the respondent said that the fact that this patient was attending on him from the central coast should have raised a concern that he was drug-seeking, particularly as he been recently released from jail. He agreed that he had failed to attempt to refer this patient to a psychologist until January 2014 and that he should have done so earlier. He should also have contacted the methadone program but had failed to do so. 3. All of the scripts for Diazepam issued by the respondent from 29 January 2013 to 10 February 2015 were private scripts. The respondent again referred to his own assessment of his "flawed logic" in issuing private scripts because the greater expense would deter the patient from having them filled. Of course, this deterrent effect never occurred. The respondent also conceded that by issuing a private prescription he was able to increase the number of tablets from the limit of 50 under the PBS scheme to 100, and this is in fact what he did. Accordingly, the use of private scripts enabled this patient to have greater access to a greater quantity of this drug of addiction. He agreed that this was the case, but stated that he had never thought of this before. In the same vein, when pressed about the possibility that this patient was selling these drugs on the illicit drug market he said he had never thought of this as a possibility until the complainant's investigation commenced. Of course, in so stating the respondent has ignored the very clear advice given to him by Ms Dolan in 2012 that a market for illicit drugs did exist and that drug-seeking patients were prone to use it. Whether or not he has chosen to do so deliberately, it is clear that the respondent has from time to time engaged in unlawful conduct in breach of the statutory framework in which he was entitled to practice medicine. 4. Unsurprisingly, Dr Deed was highly critical of the respondent in the treatment of this patient in failing to conduct an appropriate assessment, in failing to provide a documented diagnostic assessment, in failing to discuss non-pharmacological approaches, in failing to devise an appropriate treatment plan, in failing to make appropriate and timely referrals for specialist assistance and, in general terms, in failing to prescribe these drugs of addiction for an appropriate therapeutic purpose in all the circumstances. In the opinion of Dr Deed, this patient clearly exhibited drug-seeking behaviour. 5. The material contained in the reply of the respondent may be summarised as "too little too late." Hopefully, it is not necessary to describe in any detail why this is so having regard to the narration above. 6. In all the circumstances we are comfortably satisfied that the particulars of the complaints with respect to this patient have been established Patient L 1. The first recorded notation for this patient, a male aged 46, is 1 September 2011. The patient told the respondent that his father had cancer, was in palliative care and that this caused anxiety and depressive symptoms with insomnia. The notes state that the patient was counselled concerning grief and advised to try St John's Wort for the next 4 weeks in conjunction with counselling he was receiving from his pastor. On 4 October 2011 the patient advised the respondent his father had died and he was prescribed Valium for "anxiety." The respondent changed this medication to Serepax on 7 November 2011 and continued to prescribe that drug until 3 April 2012 when he again prescribed Valium. The respondent continued to prescribe Valium on a regular basis to this patient until and including the last notation of an attendance on 23 March 2015. 2. In his oral evidence the respondent conceded that he had issued a prescription for 100 Alprazolam 2 mg on 23 June 2011 with 5 repeats. He was unable to provide any explanation as to why he had done this and agreed that this drug is very addictive. He further agreed that he had prescribed highly addictive drugs to this patient for a period of 3 ½ years and had only ceased doing so when he became aware of the investigation by the complainant. 3. Dr Deed was highly critical of the treatment afforded by the respondent to this patient. There was no assessment of the patient's condition, no diagnosis was made, there was no discussion of non-pharmacological approaches, there were no clinical notes describing any condition or the reasons for the prescription of drugs on many occasions, and there had been no timely referral for specialist advice. Accordingly, there was no appropriate therapeutic purpose for the prescription of these drugs of addiction over the period of treatment. 4. In his reply the respondent said that he had assessed the patient and diagnosed anxiety, depression and insomnia. The clinical notes reflect only statements made by the patient, but no attempt at diagnosis by the respondent. He has thereby accepted everything the patient has said at face value, as is the case with all but a few of the patients whose treatment is the subject of these proceedings. The respondent also relied upon the impact on the patient of the death of his father and the fact that he had recommended non-drug alternatives. There was, however, no attempt to evaluate the nature and extent of the patient's anxiety and whether or not it justified the prescription of these drugs of addiction. 5. In all the circumstances we are comfortably satisfied that the particulars of the complaints concerning this patient have been established. Patient M 1. This 48-year-old female patient consulted the respondent on 26 May 2011 for what the notes described as "anxiety/depression" and for counselling. Advice was given on that date to reduce the existing Benzodiazepine dosage which had, from information contained in a response from the respondent to the complainant, been prescribed by the respondent's late father. The respondent again saw her on 9 December 2011 complaining of anxiety and panic attacks together with insomnia resulting from a family dispute. He prescribed Mogadon and Xanax. On 23 January 2012 the patient presented with stress caused by a custody dispute and the respondent again prescribed Mogadon and Xanax together with Valium. Thereafter he continued to change the dosage, but in general terms prescribed Valium and Temazepam. There is a notation of advice to reduce the dose of Valium, and to apply "mental exercises to divert the mind for negative thoughts and emotions" and to try relaxation and breathing exercises at home. As at 4 October 2013 the respondent noted that he would not prescribe any further Serepax or Mogadon but only Valium in the future. The respondent last saw her on 15 May 2015 when he prescribed Valium which he described as being the last script which he would issue and he referred the patient to a psychologist. 2. In his oral evidence the respondent said that he had deferred referring this patient for specialist psychological treatment because he had been providing counselling. He conceded that his only qualifications in counselling were those gained through undertaking his RACGP course. 3. When taken to his prescribing record for this patient the respondent was asked to comment on 16 private scripts which he had issued for 100 Diazepam tablets for the period 5 August 2013 to 13 November 2014 and 4 private scripts which he had issued for Diazepam without there being any indication as to the quantity for the period 15 December 2014 to 15 May 2015. He was unable to provide any explanation other than he assumed that this would make it more expensive for the patient, although he conceded he was able to prescribe 100 tablets rather than the PBS maximum of 50 on each script. 4. The respondent conceded that he ceased prescribing Benzodiazepines for this patient only after the complainant's investigation had commenced. 5. Dr Deed was highly critical of the respondent in connection with his treatment of this patient. He had failed to conduct an appropriate assessment and diagnosis, there were inadequate reasons noted for the prescription of these drugs of addiction constituting an adequate clinical assessment and management planning. A period of 2 years had elapsed before any reference to referral for specialist treatment from a psychologist and no referral was in fact recorded until some 4 years after initial contact with the patient. Accordingly, there was no appropriate therapeutic purpose for the prescription of these drugs of addiction. 6. In his reply the respondent said that he had diagnosed the patient as suffering from anxiety and depression. However, this is not borne out by the clinical notes. The respondent relied on his referral to a psychologist on 15 May 2015 and his reduction of the dose of Xanax on 26 May 2011 as mitigating factors. Again, these matters fall within the rubric "too little too late". We are comfortably satisfied that the particulars of the complaints brought against the respondent with respect to this patient have been established. Patient N 1. This 36-year-old male patient attended on the respondent on 6 August 2013 for "anxiety disorder/panic attacks/agoraphobia" and was prescribed Serepax. This is the totality of the information contained in the clinical note referable to that attendance. He again attended on 3 September 2013 for "possible post-traumatic stress disorder after being violently assaulted several years ago" for which he had counselling. It seems that the respondent advised him to again attempt counselling and prescribed further Serepax tablets. Thereafter the patient continued to be prescribed Serepax on a regular basis, sometimes with no notation at all for the reason for his attendance on the respondent. On 1 December 2014 the respondent noted that the patient was "still reluctant to meet with counsellor" but gave him a referral letter to a psychologist and issued another prescription for Serepax. After some further attendances the respondent noted on 12 March 2015 that he would not prescribe any further Benzodiazepine medication and noted that the patient had still not made an appointment to attend on the psychologist. On that day he again prescribed Serepax. The respondent's letter of referral to the psychologist referred to anxiety symptoms and that the patient had been trying to wean off Benzodiazepines. 2. A schedule of prescriptions provided by the respondent for this patient indicates that he issued 19 scripts for Oxazepam between 6 August 2013 and 31 October 2013 all of which were private scripts. 3. In his oral evidence the respondent conceded that he should have referred this patient for specialist treatment much earlier and that he was aware that the patient had a problem with addiction to Benzodiazepines. He was unable to proffer any explanation as to why all of the scripts were private scripts. 4. Dr Deed was highly critical of the respondent's treatment of this patient. There was only a brief description of a "current assumed diagnosis", no reference to any pre-existing clinical records, no discussion of alternative supporting treatment, and no planning for psychological expert assistance or alternative pharmacological approaches. In these circumstances, there was no appropriate therapeutic purpose for the prescription of these drugs of addiction for more than one year. 5. In his reply, the respondent said that he had verified the prescription for Serepax for an anxiety disorder and agoraphobia with an earlier prescriber, presumably his father, but there is no reference to this in the clinical notes and the previous clinical records are not within the patient's records. The respondent referred to his referral to a psychologist on 1 December 2014 and his recommendation for the reduction of dosages and the commencement of non-drug alternatives. Again, these matters fall within the rubric of "too little too late" and do not adequately mitigate the misconduct of the respondent. 6. In all the circumstances we are comfortably satisfied that the particulars of the complaints made with respect to this patient have been established. Patient O 1. This 54-year-old male patient first presented to the respondent on 11 August 2011. The clinical notes that day indicate that the respondent was given documentation demonstrating a spinal disc protrusion at the C5/6 level and stenosis at other cervical spine levels by reference to an MRI scan at RPA hospital. There is an extract from an MRI report dated 21 December 2009 to this effect. The patient told the respondent that he had used other medication in the past which had been effective but that he found OxyContin had assisted in the past with, presumably his complaints of pain, although this is not specifically stated in the notes. The clinical notes indicate that at the initial consultation the respondent prescribed OxyContin 80 mg, 2 tablets twice a day consistent with a notation that there would be a trial of opioids for a short-term before the patient was seen by a pain management specialist or neurologist or neurosurgeon. In fact, the prescribing records indicate that a script for this medication was issued on 11 August as a private prescription and not as a PBS prescription. 2. The patient again presented on 27 August 2011 with complaints of worsening severe cervical spine, lower back and left leg pain and he was referred by the respondent to Dr Robert Adler. 3. A clinical record of an attendance on 21 September 2011 referred to the patient having been admitted to hospital and having fainted. The respondent advised him to wean off his dose of OxyContin. The respondent prescribed 80 mg of OxyContin to be taken 2 tablets in the morning, one tablet at midday and one tablet at night. We note that this still involved a total dose of 320 mg per day. On 7 October 2011 the respondent reduced the dose of OxyContin to 80 mg taken 3 times a day. On 8 November 2011 the respondent prescribed Duragesic patches. On 29 November 2011 the respondent ceased prescribing Duragesic patches and again prescribed OxyContin 80 mg one tablet 3 times a day. This dose was reduced on 19 December 2011 to 40 mg 3 times a day together with Tramadol Hydrochloride. 4. There is in the clinical notes a discharge referral from RPA hospital dated 16 September 2011 which refers to the treating general practitioner of this patient as being Dr JS Chan of Ashfield, and makes no reference to the respondent. That document refers to an unsuccessful attempt to wean the patient off opioids. He was discharged on a regime of 80 mg tablets four tablets per day. 5. The prescribing records of the respondent indicate that on 8 November 2011 he prescribed Duragesic patches, Tramadol and 80 mg OxyContin to be taken once 3 times a day. Apart from the Duragesic patch which was issued on a PBS prescription, the other scripts were private scripts as were all of the other scripts issued by the respondent to this patient. The last scripts issued were dated 19 December 2011. 6. Dr Deed was highly critical of the treatment afforded to this patient by the respondent. The dose totalling 320 mg of OxyContin prescribed on 11 August 2011 exceeded the guideline related safe upper limit of Morphine equivalence by 4 times. Although the respondent presumably had the health summary relating to the 2009 cervical disc problem, Dr Deed noted that there was no indication of any recent examination, or any details of the current prescriber of medication for the patient, and there is no indication that the respondent attempted to seek these out. Before prescribing such a high level of dose, the respondent should have ascertained whether the patient was on an Opioid Treatment Plan, taking additional Benzodiazepines or alcohol which would have significantly increased the risks to the patient's safety. Furthermore, there was no clinical history or examination conducted on 8 November 2011 when the respondent commenced prescribing fentanyl patches together with OxyContin with a total daily dose of morphine equivalence of potentially 660 mg a day, 6 times the accepted upper limit of safety. Even though the respondent prescribed Tramadol with a reduced OxyContin dose on 18 December 2011 in an effort to wean the respondent off opiates gradually, this dosage was still 2 times the upper limit of safety having an equivalence of 260 mg of Morphine a day. In that there was no planning by the respondent for psychological expert assistance, alternative pharmacological approaches and any assessment of comorbidities such as depression, the prescriptions were issued against a background of inadequate assessment and management planning and were therefore inappropriate. Dr Deed regarded this as a significant departure from the appropriate standard. 7. Dr Deed was also critical of the failure of the respondent to follow-up the outcome of the referral to RPA hospital and the fact that the discharge information contained the name of an alternate prescriber. He noted that the respondent continued to prescribe opioids "on a background of poor documented management plan and a safety plan for the patient at such high daily doses of opioids. Often visits were recorded with no examination or history." In all the circumstances there was no appropriate therapeutic purpose for the treatment undertaken by the respondent of this patient. Furthermore, the respondent had failed to obtain the appropriate authority to enable him to continue prescribing opioids. 8. In the course of oral evidence, the respondent conceded that a starting dose of 320 mg a day of OxyContin was dangerous, that he did not undertake a proper clinical assessment and that the worsening reports of severe pain raised a suspicion that the patient was drug seeking. He conceded that he had heard that increasing doses of opioids can result in increasing pain or suggest advancing pathology. 9. In his reply the respondent said that he assessed the patient on 11 August 2011 and diagnosed a cervical disc protrusion at the C5/6 level based on the MRI scan. However, that scan was dated 2009, and, as Dr Deed pointed out, the respondent failed to carry out any appropriate physical examination to verify the patient's continuing complaints of pain emanating from that source. It is true that the respondent did refer the patient for specialist opinion from Dr Adler, but there is no indication that he followed this up. In the same way, the respondent's assertion that he did recommend reducing dosages and commencing non-drug alternatives falls within the rubric "too little too late" particularly considering the very high and dangerous doses of OxyContin which he had prescribed. 10. In all the circumstances we are comfortably satisfied that the particulars of the complaints which are referrable to this patient have been made out. Patient P 1. The first clinical note for this 41-year-old female patient is dated 18 August 2011. She complained of chronic severe lower back pain as a result of work involving heavy lifting and frequent bending. She told the respondent that an x-ray showed scoliosis and degenerative disc changes in the lumbar spine and that she was due for treatment with a neurologist. She said that non-steroidal medication and Panadeine Forte had been ineffective for pain relief. The notes contain no indication that any physical examination was carried out or that any diagnosis was made. The respondent prescribed 100 mg MS Contin to be taken one a day. On 1 September 2011 the respondent reduced this to 60 mg. The patient again presented on 7 October 2011 complaining of anxiety and depression as a friend had committed suicide in her bathroom. He continued to prescribe MS Contin 60 mg and gave the patient a prescription for Temazepam. On 13 October 2011 the respondent made a note of "opiate dependence". The respondent prescribed Tramadol. By 20 October 2011 the respondent had called the doctor shopper line and Blacktown methadone clinic with nil results. He planned to reduce her opioid dose over the next 3 to 6 months and advised her on either physiotherapy, chiropractic or hydrotherapy as an alternative to medication. From November 11, 2011 to 20 February 2012 the respondent continued to prescribe 60 mg MS Contin, but indicated that he would reduce this, which he did on 26 March 2012. However, after the patient attended on 13 June 2014 having had her teeth removed, he increased the dose to 60 mg. On 20 June 2014 the respondent prescribed Temazepam, but there was no notation of any complaints made by her and the reason for issuing this prescription. The respondent continued to prescribe reduced levels of MS Contin and Temazepam to this patient until 15 September 2014. Thereafter he continued to prescribe Temazepam on 2 occasions until 23 June 2015. 2. The prescribing records for this patient indicate that she was being prescribed drugs of addiction intended to last her one-month but that she was returning to the respondent and being prescribed drugs before the due date. 3. In oral evidence the respondent said that he could not recall ever having contacted the neurologist who was to treat the patient. 4. Dr Deed was highly critical of the respondent's treatment of this patient. He had failed to carry out a clinical assessment of her underlying spinal condition and had not recorded any clinical history of her symptoms or the results of any neurological or musculoskeletal examination. There were no clinical notes accompanying the prescription of Tramadol and why this drug was prescribed. Dr Deed noted that Temazepam was prescribed at 10 mg twice a day which he thought unusual for a hypnotic to be prescribed for daytime use. Overall there was inadequate clinical assessment and management planning and the prescription regime of the respondent was therefore inappropriate. 5. In addition, Dr Deed observed that the respondent did not follow-up previous clinical records or alternative prescriber details and did not follow up the consultation with the urologist. Furthermore, he should have referred the patient for specialist assistance. It was also inappropriate for the respondent to have prescribed drugs of addiction without the relevant authority. 6. In his reply the respondent said that he assessed the patient on 18 August 2011 and diagnosed "severe low back pain aggravated by heavy lifting at work." We observe that this is not a diagnosis, but a description of the symptoms of the patient. The respondent also said that the patient was under the care of a neurologist, but there is simply no indication in the notes of the nature and extent of that care, nor did the respondent on his own admission follow-up the neurologist. Finally, the respondent said that he had planned to wean the patient off opioids and had reduced the dosage of MS Contin and had also contacted the doctor shopper line and Blacktown Methadone Clinic. However, based on the opinion of Dr Deed, this latter assertion falls under the rubric "too little too late." 7. In all the circumstances we are comfortably satisfied that the particulars of the complaints referable to this patient have been established. Patient Q 1. The respondent's clinical notes indicate that he first treated this 36-year-old male patient who resided in Brisbane on 23 September 2011. The patient reported chronic lower back pain following a horse riding accident some 6 years earlier and said that he was seeing a neurologist. That is the extent of the clinical notes that day. The respondent prescribed a Duragesic patch to be applied every 3 days. The patient next attended on 30 September 2011 and there is a note that he was told to obtain future scripts only from his regular doctor. Nevertheless, the respondent prescribed OxyContin 40 mg 3 times a day. There is no notation of any physical examination, diagnosis or other assessment, nor of any complaints made by the patient concerning any pain. On 7 October 2011, some 7 days later, the patient attended complaining of chronic pain and was prescribed Duragesic patches. On 17 October 2011 the patient again complained of chronic pain and was prescribed 40 mg OxyContin to be taken 3 times a day. Further patches were prescribed on 24 October 2011 without any notification of the reason why, and the patient attended on 14 November 2011 complaining of chronic back pain stating that OxyContin was more effective than the Duragesic patches. He was again prescribed OxyContin 40 mg one to be taken each day. This prescription was repeated on 9, 12, 13 and 18 January 2012. The scripts dated 9 January and 22 February were each for 28 tablets. There is no record of the number of tablets prescribed on 13 January because this was a private prescription. On 18 January 14 tablets were prescribed. The patient next attended on 3 February 2012 and was told that it was too early for him to attend for a further prescription of OxyContin. He last attended on 22 February 2012 with a note that he was weaning down his dose of OxyContin. The respondent prescribed OxyContin 30 mg to be taken twice a day. 2. As is obvious from the narration which we have made based on the clinical notes, the respondent failed at any time to carry out an appropriate examination of the patient, to obtain information from treating doctors in Brisbane and the neurologist to whom the patient had made reference. There was no attempt made to refer this patient for specialist advice and it should have been clear to the respondent from the behaviour exhibited by the patient that he was drug-seeking and perhaps drug dependent. All of these matters were referred to by Dr Deed in his highly critical assessment of the treatment of this patient by the respondent. 3. In his reply the respondent asserted that he had diagnosed severe low back pain with possible pathology. Such an assertion is not indicative of a diagnosis, particularly as there is no evidence of any physical or other examination having been conducted and consists of the symptoms and history given by the patient. The respondent also referred to the fact that the patient was under the care of a neurologist at the time, but has failed to make any enquiries concerning the nature and extent of that care. Neither of these matters mitigates the misconduct of the respondent. 4. In all the circumstances we are comfortably satisfied that the particulars of the complaints relating to the treatment by the respondent of this patient have been made out. Patient R 1. This 39-year-old male patient first attended on the respondent on 11 May 2012. The notes record "Anxiety disorder…. advised on relaxation techniques." The reason for contact was said to be a Mental Health Care consultation. The respondent prescribed Valium 5 mg one tablet twice a day. He also prescribed Flagyl but there is absolutely no reason why this drug was prescribed contained in the clinical notes for this visit. The patient again attended on 25 May 2012. The notes refer to an oral infection which was resolving with Flagyl, which at least explained why that medication had previously been prescribed. A further prescription was issued for Valium 5 mg, notwithstanding that the prescription on 11 May was for 50 tablets which should have lasted the patient 25 days. This patient continued to attend on the respondent, receiving prescriptions for Valium 5 mg which was increased to 1 tablet 3 times a day. On most occasions the clinical notes do not record any diagnosis or any reason for continuing to prescribe Valium. On some occasions there is a record of various relaxation and similar techniques given to the patient and a suggestion of referral to psychological counselling. On some occasions there is a reference to advice about the risk of addiction with long-term Benzodiazepine use and a plan to wean down over the next few months. In general terms the respondent continued to prescribe Valium for this patient until 3 March 2015. On 27 April 2015 the patient again attended and the respondent refused to prescribe Valium. The patient is recorded as having become verbally abusive and physically threatening. 2. In total, 39 scripts for Valium 5 mg were issued to this patient between 11 May 2012 and 3 March 2015. Only 4 of these were issued on the PBS scheme, the remainder being private scripts. Some of these private scripts were for 100 tablets. 3. In his oral evidence the respondent conceded that he should have referred this patient to a psychologist much earlier than he attempted to do. He further conceded that the fact that he issued private scripts indicated that it was possible that he thought that the patient was drug dependent. Further, he agreed that he should not have prescribed Valium to this patient at all. Finally, he conceded that despite his professed endeavours to attempt to reduce the dosage for this patient, no reduction at all occurred in the period 4 August 2014 to 3 March 2015. 4. Dr Deed was highly critical of the respondent in his treatment of this patient. There is no evidence that the respondent conducted any appropriate assessment on his initial examination of the patient, there was no attempt to seek past medical reports before prescribing Valium, there was no attempt to ascertain whether the patient was on an Opioid Treatment Plan. (In fact, there is independent evidence that he was on such a plan). Furthermore, there is no evidence that the respondent gave this patient advice about the risks of driving, avoiding concomitant drugs or alcohol and the like. During the course of his treatment the respondent had prescribed Panadeine Forte for this patient but there is no notation of any advice about the potential for interaction between this drug and Valium, nor is there any evidence that the respondent considered this. The respondent did not, on the evidence, engage in any meaningful plan to wean this patient off Valium, which, in any event, should only have been prescribed on a short-term basis. There are indications from the notes that this patient was drug-seeking. Examples include seeking a prescription before the due date, the fact that the patient was reluctant to cease Valium and that he became verbally abusive after a prescription was denied. In addition, the respondent's clinical notes were woefully inadequate. 5. In his reply the respondent said that he diagnosed the patient at the initial consultation as suffering from anxiety and depression. But it is inadequate and inappropriate to merely make reference to these conditions, assuming that the clinical notes are capable of so being read, without assigning some underlying reasons for diagnosis consequent upon an appropriate examination of the patient and reference to any prior medical history. This assertion does not detract from the overall seriousness of this misconduct. In the same vein the respondent replied that he had referred the patient to a psychiatrist on 15 December 2014. As he conceded in his evidence this was too little, too late. Finally, the respondent relied on the fact that he had discussed non-drug and other drug alternatives with the patient and reduced the dosage of Valium. Whether or not the respondent had engaged in any such discussion, it was his responsibility to put in place some plan to attempt to wean the patient off Valium. In any event, on the evidence, and as conceded by the respondent, there was no reduction in the dosage over a considerable period. 6. In all the circumstances we are comfortably satisfied that the particulars of the complaints with respect to this patient have been established. Patient S 1. This 45-year-old female patient first consulted the respondent on 13 October 2011. The clinical notes record that the patient was travelling to Darwin to commence a new job. There is a further notation "chronic lumbar spine pain after MVA in 2009, exacerbated recently by heavy lifting." This is followed by a reference that MS Contin was effective previously, but that Tramal and NSAIDS were ineffective. 2. The clinical notes that day also record the results of a purported musculo- skeletal examination which are unintelligible. They state that back flexion was 1°, extension 1°, left lateral flexion 2° and right lateral flexion 1° and that all movements were painful. On this basis the patient would virtually have been unable to move. 3. The respondent prescribed MS Contin 60 mg one tablet twice a day. 4. On 24 January 2012 the respondent noted that the patient had returned from Darwin permanently. He noted that there were complaints of continuing chronic lumbar spine pain and reduced range of movement and that the job in Darwin had involved heavy lifting. He continued to prescribe MS Contin 60 mg to be taken twice a day every 2 to 3 days and noted that she was being treated by a "good chiropractor". The respondent again prescribed MS Contin 60 mg on 8 March 2012. On 30 March 2012 he told her he would not prescribe MS Contin further and substituted Valium 5 mg to be taken one tablet 3 times a day as a muscle relaxant. He also suggested acupuncture. The respondent continued to prescribe Valium for this patient until 18 April 2013. The following day he issued a prescription to her for Serepax and continued to prescribe this drug until 27 March 2015 when he told her that this would be the last occasion that he would prescribe a Benzodiazepine to her. 5. The prescription records indicate that the last 13 scripts issued by the respondent to this patient from 18 April 2013 to 27 March 2015 were private scripts. 6. If the respondent had checked, he would have found that this patient was on an Opioid Treatment Program. 7. In his reply document, the respondent conceded all of the particulars of the complaints referable to this patient. However, in mitigation he said that he had assessed the patient on 13 October 2011 and had diagnosed chronic lumbar spine pain with paravertebral back muscle spasm. Even if this is correct, there is no record of any physical examination having been conducted which would justify such a diagnosis and we do not regard this assertion as mitigating the severity of the misconduct conceded by the respondent. 8. Dr Deed was highly critical of the respondent's treatment of this patient. He regarded the assessment conducted on 13 October 2011 as being inappropriate because there was no documentation verifying the source of any chronic lumbar spine pain, no notations of any examination carried out, no attempt to ascertain whether the patient was on an Opioid Treatment Plan, or of the risks of driving, avoidance of concomitant drugs or alcohol whilst on MS Contin. There was no notation describing the potential for interaction between Valium and Panadeine Forte which the respondent had prescribed concurrently. There was a failure to make a timely referral for specialist assistance notwithstanding the lengthy time over which he had prescribed first MS Contin and then Benzodiazepines. Finally, the respondent's records were inadequate. 9. Having regard to the evidence which we have summarised above, and the concessions made by the respondent we are comfortably satisfied that the particulars of the complaints made with respect to the treatment of this patient have been established. Patient T 1. This 35-year-old male patient first attended on the respondent on 12 October 2011. There is a notation that he is based in Sydney "at the moment" but works as a truck driver driving between the Northern Territory, Queensland and New South Wales. He said that he suffered from severe chronic lower back pain having sustained an injury "several years ago" from heavy lifting. He said that he had tried NSAIDS, Tramal and Panadeine Forte "with little effect." The respondent advised him to trial acupuncture. There is a record in the notes of a physical examination. It showed, with reference to the back, that there was bilateral tenderness, a restricted range of movement and restriction present in the lumbar spine region. The patient next attended on the respondent on 9 December 2011. He was given further acupuncture. The patient told the respondent that he had had MS Contin previously up to 80 – 100 mg daily for flare-ups of back pain. The notes record that the respondent prescribed 60 mg MS Contin to be taken one twice a day as a short-term treatment and that the respondent warned the patient of side effects of long-term use, addiction and constipation. A further prescription was issued on 31 January 2012 and the respondent gave the patient two further scripts. On 8 March 2012 the patient was prescribed not only MS Contin but also Tramadol and Valium. On 19 March 2012 scripts were issued for Valium only, 5 mg taken one tablet 3 times a day. On 8 June 2012 the respondent continued prescribing Valium for "anxiety" and Tramadol. He continued to issue scripts for both these drugs until 5 September 2012, and continued issuing scripts for Valium thereafter for "anxiety". On 14 October 2013 the patient requested further MS Contin which the respondent denied. He gave him a prescription for Tramal which was then changed to Serepax on 22 November 2013. On 16 December 2013 Valium was substituted for Serepax and he continued prescribing Valium to 9 December 2014. Serepax was substituted on this occasion and he continued to prescribe Serepax until 27 March 2015. 2. The clinical notes contain a record on 24 February 2015 about an emotional and abusive reaction from the patient at a suggestion that he was to be weaned off Serepax. The patient was referred to a psychologist, but there is no indication as to whether the patient attended and if so, the results of any attendance. We note that further Serepax was prescribed on that date and on one further occasion. 3. There is also a note that the respondent referred the patient to the Prince of Wales Hospital pain clinic on 15 October 2012 but no notation as to whether he ever attended and the results of any such attendance. 4. In oral evidence the respondent conceded that he had made no notation that this patient should have avoided driving whilst taking MS Contin 60 mg. He said that he usually tells his patients not to drive whilst taking this medication or Benzodiazepines, but was unable to say whether he had done so because it was not recorded. He also acknowledged that he had failed to follow up his referral to a pain specialist in 2012. 5. The respondent specifically acknowledged that the reason why he ceased prescribing Benzodiazepine medication to this patient was because of the then pending investigation by the complainant. 6. The respondent was taken to his prescribing history for this patient. Prescriptions issued for Valium, Tramal and Serepax between 22 March 2013 and 27 March 2015 were all private scripts. There is no record of the quantity prescribed for some of these scripts but 4 of them have quantities of 100. When giving evidence about this, the respondent said at first that he wanted to discourage the patient because of the increased cost of a private prescription, but then conceded that private scripts allowed him to increase the quantity in each script from 50 to 100 so that there was, in effect, no disincentive. 7. We note that at the time that the respondent suddenly ceased prescribing Valium for this patient he was on a high daily dose of Serepax 30 mg. It was suggested to the respondent that sudden cessation usually creates withdrawal symptoms. He said that this would occur over a month or 2, but there is no mention in the clinical notes of this nor is there any suggestion of what steps should be taken to ameliorate these withdrawal symptoms. The respondent replied that he usually advised his patients to seek natural remedies such as St John's Wort and camomile tea to alleviate symptoms. We know of no scientific basis for this assertion. 8. Dr Deed was highly critical of the treatment of this patient by the respondent. There was no evidence that he had conducted an appropriate assessment prior to prescribing Diazepam on 8 March 2012. There was no record about the risks to the patient's occupation as a driver by the addition of Diazepam to his opioid medication or any assessment or advice concerning alcohol intake. There was no attempt to seek past medical records before prescribing either opioids or Benzodiazepines and the respondent did not seek information about whether the patient was on an Opioid Treatment Plan. On this basis there was inadequate clinical assessment and management planning against which these drugs were prescribed and accordingly it was inappropriate to do so. The respondent had failed to follow up previous clinical records or alternative prescribing information and referrals to a pain clinic. No adequate assessment tools were used to confirm a diagnosis of anxiety or other comorbidities in any systematic fashion. Accordingly, the prescription of drugs was itself inappropriate. Furthermore, this patient did exhibit drug seeking behaviours as referred to in the clinical notes of the respondent. 9. In his reply document the respondent relied on his referral to the pain management clinic and to a psychologist. It is a fact, however, that neither of these referrals was followed up in any way by him. He also said that he ceased prescribing MS Contin and had planned to wean the patient off Benzodiazepines. Whilst the former assertion is correct, it remains the case that on the evidence of Dr Deed this patient should not have been prescribed MS Contin, and no matter what the respondent's plan he did not in fact wean the patient off Benzodiazepines. We do not regard any of these matters as mitigating the misconduct of the respondent. 10. We are comfortably satisfied that the particulars of the complaints concerning this patient have been established. Patient U 1. This 42-year-old female patient who was said to be visiting from Queensland for a funeral was seen by the respondent on 10 August 2011. She complained of severe chronic back pain since falling off a horse 5 years previously and was taking Duragesic. The notes record that the respondent would only prescribe to her for a short term "few months" as he was not her regular medical practitioner. The notation of his musculoskeletal examination shows bilateral tenderness of the lumbar back, restricted range of movement and pain radiating into the left buttock with a query concerning sciatica. He prescribed her Durogesic patches. On 24 August 2011 the respondent prescribed more Durogesic patches and Valium. There is no indication as to why either of these drugs was prescribed. Further Durogesic patches were prescribed on 19 September, 26 September and 24 October 2011. There is a notation dated 25 October 2011 that the patient had forged scripts for Durogesic and was not to receive any further scripts. 2. Dr Deed was highly critical of the respondent's treatment of this patient. He said he did not conduct an appropriate assessment prior to prescribing Durogesic patches. Because she was an interstate visitor he should have attempted to seek her past medical records prior to prescribing either Benzodiazepines or opioids. Furthermore, his clinical notes were inadequate. 3. In his reply document the respondent asserted that he had assessed the patient and diagnosed lumbar spine pathology and sciatica. However, he did so in the absence of any corroborative diagnostic reports which would justify prescribing opioids and then Benzodiazepines. Although the respondent did cease prescribing Valium and Durogesic, the fact remains that on the basis of the evidence of Dr Deed he should not have done so at all. We do not regard these matters as mitigating the misconduct of the respondent. 4. We are comfortably satisfied that the particulars of the complaints which relate to this patient have been established. Patient V 1. This 31-year-old male patient first attended on the respondent on 16 August 2011. There is a notation that he was suffering from pain and discharge from both ears after swimming in a public school. He also complained of chronic neck and lower back pain after falling from a ladder several weeks ago and that Panadeine Forte and Tramal had not been effective. The notes seem to indicate that the respondent observed a reduced range of movement in the neck with pain radiating to the right arm and muscle pain and tenderness in the lumbar spine area. He was prescribed an initial dose of OxyContin 20 mg. On 9 September 2011 the patient was prescribed Tramadol. There is no notation why this drug was prescribed. The patient again attended on 19 September 2011 and there is a notation that he denied previous use of OxyContin/MS Contin and that he was a drug user. The respondent called the doctor shopper line and Blacktown methadone clinic with negative results. He instigated acupuncture as a trial and advised the patient about the side-effects of opioids especially constipation. He asked the patient to bring in any old scans or specialist letters and advised him to obtain a CT scan. He prescribed OxyContin 20 mg. The respondent again prescribed OxyContin 20 mg on 13 October 2011. On 27 October 2011 the patient presented asking for OxyContin for neck pain. The respondent refused and prescribed Indocid instead. On 11 November 2011, without any accompanying notation, the respondent prescribed OxyContin 15 mg and continued to do so for "chronic pain," although later at a higher dose, until 16 March 2012. On that date he prescribed Tramal 100mg and continued to do so albeit at a higher dose until 8 February 2013. In the meantime, the respondent had also commenced prescribing Valium on 5 October 2012 and continued to do so until 22 March 2013. 2. There is a notation on 22 March 2013 that the patient admitted that he had been addicted to OxyContin in the past but that he had not used opioids for the last 6 months. On that date the respondent told the patient that he planned to wean him off Valium. There is no record of any further attendance. 3. Dr Deed was highly critical of the treatment afforded this patient by the respondent. He said that the assessment undertaken, such as it was, did not justify an initial prescription of OxyContin 20 mg a day on 16 August 2011. The respondent had failed to obtain past corroborative medical records, had made no notation of any side-effects relating to the medication, had failed to refer the patient for specialist attention, had failed to ensure that there were corroborative diagnostic investigations and had failed to prepare an adequate management plan. In all the circumstances he thought that there was no appropriate therapeutic purpose for the prescription of the drugs of addiction which was undertaken, in any event, without appropriate authority. 4. In his reply document the respondent said that he had ordered a CT scan on 19 September 2011. However, the respondent had failed to follow up the apparent failure of the patient to have this carried out. The respondent also said that he regularly discussed alternatives to opioids, and had reduced the dose of OxyContin from January 2012. Having regard to the opinion of Dr Deed we do not regard these matters as mitigating the misconduct of the respondent. 5. In all the circumstances we are comfortably satisfied that the particulars of the complaints referable to this patient have been established. Patient X 1. This 71-year-old male patient first attended on the respondent on 22 July 2011. He gave a history of having been prescribed Xanax over 15 years for anxiety, had tried to wean himself off but was unable to do so. He was given a prescription containing 50 tablets. There is no notation in this record of any examination, history or diagnosis. The patient again attended on 26 August 2011 for what was described as "anxiety disorder". Advice was given for the use of relaxation techniques, meditation and breathing exercises and the strength of the prescription was reduced to 1 mg twice a day. Further scripts were issued at regular intervals without any detail being noted in the clinical notes. On 10 April 2012 there are some brief notes to the effect that the patient had initially been diagnosed with anxiety neurosis with depressive features and emotional decompensation by a psychiatrist in 1995 with good effect. The respondent noted that the patient was reluctant to wean himself off Xanax at that stage and was given a further prescription. The respondent continued to prescribe Xanax , seemingly until 20 November 2014. At that stage the patient was suffering from a number of other conditions. There is a notation on 26 June 2015 that the patient had been taking Alprazolam "most days" and a further prescription was issued that day. On 2 November 2015 the respondent noted that the patient was almost weaned off Alprazolam. 2. Dr Deed was highly critical of the treatment of this patient by the respondent. He had failed to properly examine the patient initially, he had failed to refer the patient for appropriate specialist advice, to prepare a proper treatment plan, and to take more active steps to wean the patient off Benzodiazepines which he had prescribed inappropriately for a long period of time without proper authority. Furthermore, there were obvious deficiencies in the respondent's clinical notes. 3. In his reply document the respondent said that he did in fact diagnose anxiety neurosis with depressive features. There is simply no evidence in the clinical notes that would indicate that he did so and the means by which he arrived at his diagnosis. He also said that the patient was under the care of a psychiatrist but again, there is no evidence of this. There is a report of a psychiatrist with the patient's clinical notes but this dates back to 1995. The respondent said he was aware of the need to wean the patient off Xanax and that he had reduced the dosage. Indeed, the respondent did succeed in removing this patient's dependence on Xanax, for which he is to be commended. However, it occurred over a long period of time and it is clear that the respondent failed to create and implement an appropriate plan to allow this to happen. Overall, these matters do not sufficiently mitigate the misconduct of the respondent with respect to this patient. 4. In all the circumstances we are comfortably satisfied that the particulars of this complaint as they refer to this patient have been established. The respondent's evidence 1. The respondent graduated in medicine from the University of Western Australia in 2003. He undertook internship and residency rotations in medicine in Western Australia in 2007 and 2008, and in 2009 and 2010 he undertook rotation training for general practice. Whilst doing so, he had worked in group practices. He completed a FRACGP in Western Australia at the end of 2010. The respondent joined his father's medical practice in April 2011. His father died a short time thereafter and the respondent then took over this practice, which is the practice at which his misconduct occurred. 2. The respondent voluntarily surrendered his authorities to prescribe Schedules 8 and 4D drugs on 14 October 2015. This was a result of investigations carried out by the former Pharmaceutical Services Unit and notification received from the Medical Council of NSW including a section 150 hearing which caused him to appreciate that concerns have been raised about his prescribing patterns. In a written statement he acknowledged that he had not been diligent as a medical practitioner and in particular in relation to the prescribing of Schedule 8 drugs and in relation to the generation and maintenance of necessary clinical records. He also conceded that his conduct the subject of these proceedings constituted professional misconduct as that term is defined in section 139E of the National Law. 3. In addition, the respondent conceded that he was not "adequately aware" of the provisions of the Poisons and Therapeutic Goods Act ("PTG Act") and the regulations made thereunder requiring him to seek authority to prescribe drugs of addiction to persons who were or reasonably suspected of being drug dependent or, in any case, for a period in excess of 2 months. 4. The respondent said that he had been aware of problems associated with patients on long-term use of Schedule 8 drugs and that he had taken some steps to identify doctor shopping or whether a patient was on an opioid treatment plan. He said he attempted to reduce the dosage or provide non--drug alternative medication for his patients but that he was "naive in being influenced by the patients' statements that other medications had no beneficial effect and I was not adequately sensitive to the fact that these patients were drug dependent and I continued to prescribe the medications based on their reports (sometimes supported by specialist reports) of ongoing pain and medical issues necessitating strong painkillers." As will be seen from our review of the evidence concerning each of the patients, we do not agree with everything that the respondent has said in this quoted extract from his written statement provided for the purpose of these proceedings. There were very few instances where current specialist reports were available to the respondent and, in many cases, there was no evidence that strong painkillers were required. 5. With respect to his clinical records, it was the evidence of the respondent that when he took over his father's practice the clinical records and scripts were handwritten. Some of his records were destroyed when there was a break and enter of the surgery premises and others were destroyed or severely damaged after water leaked into the surgery. Later, the records were computerised and until this was fully operational in 2013 he operated dual systems. All of these matters go to Particular 1 of Complaint Two. Whilst they are important matters, the severity of the respondent's misconduct as alleged in this Complaint goes more to the matters set out in Particular 2. The maintenance of adequate medical records is an essential and integral part of the competent practice of medicine and a failure to do so is generally regarded as a very serious matter unless there are compelling mitigating circumstances. We have outlined previously the many deficiencies in the adequacy of the respondent's clinical notes with respect to all of the patients the subject of these proceedings, as properly conceded by the respondent. There are no such compelling mitigating circumstances and the respondent's misconduct in this area is most serious. 6. In his written statement the respondent said that he had undertaken a number of remedial measures to assist in ensuring that he would no longer repeat his previous errors. These are, in summary form; 1. since 2013 or prescription pads are kept locked in a cabinet in his consultation room and he has the only key 2. additional staff have been engaged to ensure that there is always a staff member at the front desk and in the staff room 3. metal security shutters have been placed on all doors and windows to discourage break and enters 4. by the end of 2012 he had virtually ceased issuing prescriptions for Schedule 8 drugs and had stopped prescribing Schedule 4 D medication for new patients. He ceased prescribing these latter drugs in March 2015. He does not wish to have the right to prescribe these drugs in the future 5. he has undertaken a series of educational courses which, in general terms, are directed to the prescribing of drugs of addiction, the management of patients with drug and alcohol problems, and record-keeping. 1. In oral evidence the respondent said that he would be happy to join a group practice and that he had made preliminary enquiries about doing so. He was interested in engaging other medical practitioners to work in his existing practice. 2. In cross examination the respondent readily made a number of concessions, namely that; 1. until 2015 he did not have a proper understanding of the regulatory framework for the prescription of Schedule 8 drugs 2. he did not recall from his conversation with Ms Dolan in May 2012 that he needed to acquire an authority to prescribe drugs of addiction 3. he recollected being told by Ms Dolan to cease prescribing drugs of addiction until he obtained an authority but he focused on Schedule 8 drugs and not on Schedule 4 D drugs. 4. He was unable to recall receiving or reading the documents which were forwarded to him by Ms Dolan. He said his record-keeping was not good and he could have misplaced them. 5. He probably did not make any independent enquiries about his obligations under the legislation in around May 2012. 6. He was given a list of patients to whom he was prescribing Schedule 8 drugs by Ms Dolan and ceased prescribing to them but continued prescribing Schedule 4D drugs. 7. When he started practice he knew that one of the purposes of a medical assessment was to ascertain whether the complaints of symptoms were genuine. He said he did not put this into practice because he got into "bad habits and laziness" and was overwhelmed after his father died. He conceded he did not make any proper assessment in the majority of consultations which he carried out. 8. He should have been more aware that patients who lived a long way from his practice were drug seeking, and he had never thought of this at the time. 9. He had an understanding of the effects of opioids on driving in mid to late 2011. He thought that opioids could make a patient drowsy. He was unable to say that he had a usual practice about what he told his patients; he would tell them that opioids could make them drowsy, could cause constipation and could be addictive, but this was not "standard". He estimated that he told his patient of these matters about 50% of the time. 10. As at March 2015 his usual practice in discussing withdrawal symptoms in most cases would be to mention increased anxiety and tremors. However, when he ceased prescribing drugs of addiction at about that time, once he had become aware of the investigation by the complainant, all of his patients left him and he did not have a chance to give advice about weaning off the medication. 11. Between 2011 and 2015 about 25% of his patients were being prescribed drugs of addiction. All of them were bulk billed. The statutory framework for determining misconduct 1. The respondent conceded that he was guilty of professional misconduct as well as unsatisfactory professional conduct as both those expressions are defined in the National Law. Relevantly, the definitions are in the following terms; 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means – (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. This leads to a consideration of what is "unsatisfactory professional conduct" the relevant parts of which are 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. The respondent has formally substantially conceded that they have been made out. For the reasons which we have given in the narration set out above, which are based on the factual evidence in the proceedings, the expert opinion of Dr Deed and the admissions made by the respondent, we are comfortably satisfied that all of the particulars of all the Complaints have been established, and we so find. 2. We refer to the decision of HCCC v Dr Nemeth [2012] NSWMT 4 as reflecting the appropriate approach to be taken to the determination of these proceedings in accordance with principles well established by relevant authorities. At [48] and following the Tribunal said: The central issue to be determined is whether or not all the conduct admitted in respect of Complaint 1, when viewed separately as independent breaches of the appropriate standards or when taken together, amount to the more serious finding of professional misconduct. The question then becomes, if the conduct is perceived as a most basic breach of the standards such as to amount to professional misconduct, whether the severity of such would justify the doctor's suspension or cancellation of registration. In Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, Kirby P described the test for professional misconduct as follows. He said (at 200): Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner. Further, (at 201), Kirby P said: The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed. In Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99 at [18] and [19], the Tribunal said: [18] The issue is whether, when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration: s 37 Medical Practice Act 1992, s 139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct based on the outcome. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public: s 2A (3) of the Act. [19] The "seriousness" of unsatisfactory professional conduct depends on the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. "Misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Priestley JA at [104]. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at [200]. 1. As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law engages in conduct which 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 facts established in these proceedings bear a striking similarity to those found by this Tribunal in Health Care Complaints Commission v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157. At [78] and following the Tribunal said; 78. The mere recitation of the Complaints and the particulars found to have been established, coupled with the evidentiary material to which we have referred and the expert opinion of Dr Patterson in the context of the concessions made by the respondent are sufficient to justify a conclusion that in the aggregate the respondent is guilty of professional misconduct. 79. The professional misconduct of the respondent which we have found following his admissions and our conclusions concerning those matters which were contested is of a most serious kind. With respect to Complaint One, the respondent has conceded that he engaged in conduct that demonstrated that his knowledge, skill or judgement which he possessed and the care which he exercised in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This misconduct was not confined to a few cases. It extended to 26 patients over a considerable period of time. It persisted notwithstanding warnings received from the Pharmaceutical Services Unit. The respondent conceded that, in the bulk of the cases, he did not perform an appropriate medical assessment prior to issuing the scripts, he did not exercise responsible medical judgement as to whether it was appropriate to issue the scripts, he failed to refer the patients to a specialist for treatment, review or advice and he was aware that his conduct in prescribing drugs of addiction was contraindicated because of the likelihood of substance abuse. In effect, based on the evidence of the respondent himself, as well as the expert opinion of Dr Patterson, the respondent was in the same position as a drug supplier, dispensing drugs of addiction to persons who were, or might become, addicted and drug-dependent. In addition, as is clear from the expert opinion of Dr Patterson and as conceded by the respondent the fact that he prescribed Schedule 8 drugs in combination with a benzodiazepine created significant health risks for some of his patients. These included the possibility of respiratory depression with potentially fatal outcomes as well as the increased risk of benzodiazepine-dependence. 80. Furthermore, the respondent was aware that he required a relevant authority under the Poisons and Therapeutic Goods legislation to dispense such drugs, and that his misconduct was carried out in contumelious disregard for his lawful obligations. By reason of the matters referred to in Complaint Two, the respondent conceded that he had issued private scripts. Despite, and, relevantly, because of the respondent's inability to give any plausible explanation as to why he would do this, we infer that the private scripts were issued so that it was more likely that the respondent's misconduct would not come to the attention of the authorities. The misconduct of the respondent as we have described it, which involved him in engaging in the unlawful and inappropriate distribution of drugs of addiction was compounded by his failure to maintain adequate and proper medical records as set out in Schedule 2 to the Health Practitioner Regulation (NSW) Regulation, 2010 for each of the patients. 81. It is a trite observation that comprehensive record-keeping is essential to assist a medical practitioner in affording proper and appropriate treatment to patients. A history of reported symptoms, diagnoses, tests and procedures, medication, and referrals amongst other matters are necessary tools in the practice of medicine. It is important also that another medical practitioner who may be required to afford treatment to the patient, be able to become informed about the patient as quickly as possible by reference to existing medical records. A failure to keep and maintain necessary and appropriate records may not only constitute a breach of the statutory requirements referred to above, but may, in appropriate cases per se be characterised as constituting unsatisfactory professional conduct and professional misconduct. 1. We acknowledge that with respect to the comments of the Tribunal in Asar extracted in [80] above the respondent did not readily concede that he was aware of his statutory obligations under the Therapeutic and Poisons legislation. Nevertheless, it is clear that he was informed of these obligations by Ms Dolan in May 2012, warned of the consequences of any failure to comply and was furnished by her, as we find, with extensive documentation traversing the area of dispensation of drugs of addiction and the statutory framework against which this should occur. The respondent's contumelious disregard for his statutory obligations must date, at the least, from May 2012. Furthermore, it was the obligation of the respondent to ensure that he was aware of any statutory requirements which affected his practice of medicine. Findings on professional misconduct 1. As we have stated on more than one occasion, the respondent has formally conceded that he is guilty of professional misconduct. Hopefully, the recitation of the factual matters which we have undertaken above and the expert opinion of Dr Deed, which we accept and which was not substantially challenged by the respondent, are more than sufficient to demonstrate that the respondent is clearly guilty of professional misconduct, as we formally find. 2. For completeness we rely on the summary of the characterisation of the conduct of the respondent with respect to the patients as prepared by counsel for the complainant, which we accept as reflecting the findings which we have made, to the following effect; A failure to carry out a proper assessment of the patient's condition All of the patients A to X A failure to make timely and appropriate specialist referral All of the patients A to X The prescription of drugs of addiction for an improper purpose and inappropriate quantities All of the patient's A to X The prescription of drugs of authority without an authority as required by statute Patients A to C, E, G, O to Q, S, U to X The failure to respond to drug-seeking behaviour A, B, E,J,K,V and W 1. Assuming that it was the intention of the respondent to competently practice safe medicine, he was clearly out of his depth in prescribing drugs of addiction. He has demonstrated an inadequate knowledge of the circumstances in which drugs of addiction should be prescribed and all of the cautionary measures which should attend their prescription. There is occasional reference in his notes to the addictive nature of the drugs being prescribed by him and the precautions which he said he gave to the patients, but such information was rarely shared with the bulk of his patients. This demonstrates that he had at least some inkling that he had a responsibility in this area, and yet he failed to fulfil that responsibility in most cases. Furthermore, the respondent failed in most cases to adequately and appropriately monitor the progress or otherwise of the patients, offer alternative medication or treatment and insist on the patients complying with requests for referral to specialists or allied health practitioners. We acknowledge that the treatment of persons who are addicted to drugs can be a most difficult task, but the fact of that difficulty necessitates taking appropriate steps in the interests of the well-being of the patients rather than merely to continue to feed their drug habit. A medical practitioner who is involved in the treatment of a cohort of patients of the kind undertaken by the respondent in these proceedings is responsible to ensure that he or she is either appropriately aware or becomes appropriately aware of the milieu in which those patients are treated. It is not enough to apply such knowledge and techniques of which the practitioner is aware unless that knowledge or those techniques are appropriate for the treatment and care of that cohort of patients. If a practitioner encounters patients whose conditions are beyond the nature and extent of his or her current knowledge, that knowledge should either be acquired by referring to or accessing appropriate information, or the patients should be referred off to someone who is competent to treat them. We have not been informed by the respondent about whether he felt comfortable in treating these patients, but clearly he was incompetent to do so. This lack of understanding on his part is arguably indicative of failings which might apply to other areas of practice where he lacks competency or does not comprehend that he is incompetent. These are attributes which are fundamental to the safe practice of medicine and which are seemingly not possessed by the respondent. 2. In the case of some patients, as we have outlined, the respondent prescribed drugs of addiction in amounts and on dates which must have indicated to him that either the patients were consuming more of the drugs than he was specifying or that they were selling the drugs illicitly. We cannot comprehend how a medical practitioner could possibly overlook the consequences of prescribing patterns of this kind. Either he was not thinking of these consequences, or did not care. In either case this is indicative of incompetence in the practice of safe medicine. 3. And of course, the failure of the respondent to conduct, in some cases any, and, in most other cases an appropriate examination of the patients and to take an appropriately detailed history is also indicative of incompetence as a medical practitioner. This abject failure is compounded by the failure to make and maintain appropriate clinical notes as required by the legislation. 4. There are additional matters revealed in the evidence to which we have referred; 1. many of the patients had in fact been on a methadone program and if the respondent had enquired he would have found this out. The further prescription of drugs of addiction would in those circumstances have been contraindicated. 2. there is a history of the respondent accepting at face value a diagnosis presented by the patients and willingly providing prescriptions for drugs of addiction which they requested without any appropriate evaluation 3. the respondent ceased suddenly and without warning to prescribe opioids and benzodiazepines to patients who were regularly taking these substances once he became aware of the HCCC investigation without, on the evidence, putting in place any protocols to minimise withdrawal symptoms and to refer the patients for appropriate treatment. Seizure is a well-known complication of sudden withdrawal. 4. He did not adequately understand the dangers of prescribing opioids and Benzodiazepines together and the effects of this would have on respiratory function. These matters were also exacerbated with alcohol. 5. He did not understand that schedule 4 D drugs were dangerous and for short-term use only. 6. He failed to appreciate that Benzodiazepines should not be used for pain relief and that if they are withdrawn their effects can last for up to a few months. 1. In addition to these fundamental concerns about the competency of the respondent there are other areas concerning his general practice of medicine which point to a lack of competency. This is so particularly in the case of patient W. The respondent's clinical notes referred to a CNS examination and a finding of increased muscle tone in the right leg. When questioned by the Tribunal the respondent conceded that this clinical finding may have been indicative of serious pathology such as a spinal cord tumour or stroke and warranted immediate further assessment. Instead, the respondent had provided a prescription of opiate analgesics. His apparent failure to perform the other routine elements of the neurological examination of the lower limb which included reflexes, plantar reflex, sensory function and straight leg raising indicated a poor standard of clinical practice and reasoning and, in our opinion, an inadequate demonstration of commitment to patient safety. 2. A further example is provided in the case of patient I. The respondent had recorded a history of treatment with a moderate dose of a dual action antidepressant. In addition to anxiety symptoms he recorded appetite/weight loss and sleep disturbance. In response to a question from the Tribunal the respondent agreed that these might be symptoms of depressive illness. Various parameters of physical health were detailed under examination findings, but no further comment was made with regard to the presence or absence of other symptoms of mood disorder. No attempt was made to record the mental state examination. What appears to be his common practice of increasing an antidepressant to a higher dose may have had, depending on any psychiatric diagnosis, an attenuating influence over the presentation in the course of several weeks, enabling a reduction or cessation of benzodiazepines. The respondent indicated that he did not consider this. He continued to prescribe benzodiazepines. Protective orders 1. Consequent upon the finding of professional misconduct which we have made, it is necessary that we determine what protective orders should be made in consequence. The complainant submitted that the registration of the respondent should be cancelled and that he should not be permitted to apply for registration for a period of one year. The respondent submitted that his registration should be suspended for a period of one year, and that thereafter his registration should be the subject of practice conditions, including a prohibition of prescribing drugs of addiction, a requirement to practise in a group practice, and a requirement for supervision for an appropriate period. 2. The rationale for the formulation of appropriate protective orders is informed by the provisions of the National Law which have as their primary purpose the protection of the health and safety of the public. The matters which need to be taken into account in formulating these orders have conveniently been summarised in the Court of Appeal of New South Wales in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said at [35] and following; 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 asserted that his misconduct was confined to the treatment of patients who were drug dependent by reference to his inappropriate prescription of drugs of addiction, and if he excluded these patients from his practice we could be satisfied that he could practice medicine safely. This submission was complemented by the fact that the respondent had attended a number of educational courses which were directed to assist him in gaining further insight into the safe practice of medicine, especially in the areas of drug -dependent patients. However, these courses in the main lasted a day. In addition, the respondent said that his clinical notes were now much more comprehensive and complied with the relevant Regulation. He had also secured his prescriptions and other patient documentation to ensure that they could not be stolen and that patients and others did not have inappropriate access to them. He had also introduced staffing arrangements to enhance the security of the surgery. All of these matters were said, in the aggregate, to allow us to conclude that after a period of suspension it would be safe for the respondent to resume practice. 3. This submission has superficial attraction only. An assertion by the respondent that if he is precluded from prescribing drugs of addiction that he will be able to practice medicine safely assumes that he would abide by the regulatory provisions concerning the prescription of drugs of addiction. An assertion by the respondent that he would comply with the regulatory framework governing the standard of clinical notes assumes that he would comply. However, it is a fact that despite the respondent being told in the clearest of terms in 2012 in some detail about the statutory framework against which drugs of addiction could be prescribed and being given comprehensive documentation he failed to comply. We can only conclude that this failure represented a contumelious disregard for his statutory obligations. On his own admission in the course of evidence he knew that his notetaking was not compliant. In these circumstances, how can we be certain that he will not reoffend? 4. This question can only be answered if we are aware of and can understand why it is that this medical practitioner has conducted himself so inappropriately. The only evidence we have concerning what brought about his misconduct is that which he gave himself. The respondent did not lead any evidence from a behavioural practitioner such as a psychologist or psychiatrist to attempt to explain his behaviour. 5. His evidence concerning his conduct tended to describe himself as careless and lazy. He also said that he was naive in the manner in which he treated his patients and that he should have been stronger in resisting the demands of patients who were, in retrospect, drug-seeking. It was submitted on his behalf that he was not "reckless in his handling of the subject drugs. Rather, that as a result of initial ignorance, inexperience and naiveté, becoming overwhelmed by the patient load and administrative requirements of running what was formerly his father's practice, a personality style of avoiding conflict and thus giving in too readily to patient demands (leading to drug-seeking patients seeking him out) and later wilful blindness to the legal requirements of dealing with Schedule 8 and 4 D medications……." 6. If we accept, as we do on the basis of the evidence in the proceedings, that the respondent did not engage in this misconduct for the purpose of participating in an illicit drug trade, then the reasons given consist of a mix of ignorance and inexperience resulting in part in naiveté, laziness, and a personality problem in dealing with patients with strong demands. We have previously commented that ignorance in dealing with a distinct cohort of patients is no excuse, and should be readily recognised by a medical practitioner by seeking to acquire appropriate expertise or referring the patients on. The inability to resist patient demands constitutes a character deficiency inconsistent with the good practice of medicine. A medical practitioner should never afford treatment to a patient unless it is therapeutically indicated, no matter what demands are made by the patient. It is part and parcel of a medical practitioner's lot to deal appropriately with difficult patients. Both of these aspects of the respondent's conduct indicate character deficiency. Such a condition is notoriously difficult to treat. Whether it is capable of being overcome will depend upon the underlying character and condition of the medical practitioner. Unless and until we could be satisfied, on the balance of probabilities, that the respondent's practice of medicine would be unlikely to be compromised by such a condition, we cannot be satisfied in turn that he would be able to practice safely. 7. It was also submitted on behalf of the respondent that he was "relatively inexperienced" as a general practitioner in his failure to adequately maintain medical records in combination with being overwhelmed with the patients he inherited on the death of his father, the fact that he was working on his own, and that he was disorganised and unfamiliar with the administrative requirements of record-keeping in a medical practice. We comment in response to this submission that the respondent had worked as a registrar in general practice for 2 years and had gained his FRACGP. He must have been exposed to general management protocols applying to a general practice, appropriate record-keeping and the general administration of a practice. We do not accept that he was inappropriately inexperienced, and that he was unfamiliar with the administrative requirements of record-keeping. In any event, it is the responsibility of every medical practitioner to learn about and comply with the regulatory framework within which his or her practice is undertaken. To the extent that the respondent now says that his medical records are of an appropriate standard, we do not hold any evidentiary material of any kind beyond his bare statement to support this contention. We are not prepared to accept him as having discharged the burden of proof in the absence of any corroborative evidence of any kind about these matters. 8. The onus of convincing us that he is, in effect, a "reformed character" lies on him. He has not produced any evidentiary material of any kind in support of any contention that if he were permitted to continue to practice medicine whether with or without a period of suspension he would do so safely. On this basis alone, we must assume that the respondent is unable to practice medicine safely, and such inability is likely to persist for the indefinite future. 9. This conclusion is reinforced by our concerns that the respondent has demonstrated areas of general incompetency outside and in addition to the manner in which he has dealt with patients confined to their dependency on drugs of addiction. We have made reference to those matters earlier in these reasons for decision. They add to the overall picture of the respondent as being currently unfit to practice medicine safely and as being likely to be so for an indefinite period. 10. In the circumstances, it is not appropriate to suspend the registration of the respondent. Firstly, there is no good reason why a period of suspension per se would do anything to transform the respondent into a medical practitioner who could safely practice medicine within a particular period. Secondly, having regard to the nature and extent of the areas of misconduct as we have described it and the concerns we have about the respondent's competency otherwise, it is appropriate that the registration of the respondent be cancelled in the interests of the protection of the safety of the public. We recognise also the subsidiary deterrent effect on the respondent and other medical practitioners and the need to uphold the integrity of the medical profession in the eyes of the public in coming to this conclusion. 11. For all these reasons we conclude that the registration of the respondent as a medical practitioner should be cancelled. Because of the complete uncertainty as to whether, and if so, when the respondent may be able to demonstrate his competency to practice medicine safely, we propose that he be precluded from applying for registration for a period of 2 years pursuant to the provisions of section 149C(7) of the National Law. This period will provide the respondent with a minimum appropriate period in which to assess his character deficiencies as we have described them and to take such remedial action as he may wish in an endeavour to overcome them. At the conclusion of the hearing on 13 October 2017 we suspended the registration of the respondent pursuant to the provisions of section 165L(3) of the National Law. The 2 year period should be calculated from that date. Costs 1. The complainant sought a costs order in its favour, which was not resisted by the respondent. This is a costs jurisdiction and it is appropriate to make a costs order in favour of the complainant, and we shall do so. Orders 1. Pursuant to the finding of professional misconduct which we have made, we make the following orders; 1. the registration of the respondent as a medical practitioner is cancelled as and from this date. 2. the respondent is precluded from applying for registration as a medical practitioner for a period of 2 years commencing 13 October 2017. 3. the respondent is to pay the costs of the complainant in an amount assessed in default of agreement. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2017