Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kingston [2018] NSWCATOD 28 Hearing dates: 21 – 24 November 2017 Date of orders: 27 November 2017 Decision date: 12 March 2018 Jurisdiction: Occupational Division Before: C Armitage ADCJ, Principal Member Dr M Diamond, Senior Member Dr A Reid, Senior Member J Houen, General Member Decision: 1. Pursuant to section 149C (4)(a) of the Health Practitioner Regulation National Law (the National Law), the Tribunal decides that if Dr Kingston were still registered as a medical practitioner it would have cancelled his registration on the register of health practitioners, in relation to medical practitioners, kept by the Medical Board of Australia and maintained by the Australian Health Practitioner Regulation Agency. 2. Pursuant to section 149C(4)(b) of the National Law Dr Kingston is disqualified from being registered as a medical practitioner in the medical profession for a period of three years from the date of these orders. 3. Pursuant to section 149C(4)(b) of the National Law the Tribunal requires the Medical Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Dr Kingston's registration as a medical practitioner. 4. The Tribunal orders that three years must elapse from the date of these orders before Dr Kingston may make an application for a review under section 163A of the National Law to this Tribunal. 5. The Tribunal orders that Dr Kingston pay the applicants costs of these proceedings as agreed or assessed. Catchwords: PROFESSIONS AND TRADES –– health care professionals –– medical practitioners –– Health Practitioner Regulation National Law –– complaints of unsatisfactory professional conduct and professional misconduct ––self-prescribing –– practitioner prescribing drugs to person with whom practitioner had close personal relationship –– personal and sexual relationship –– prescribing excessive dosages –– inappropriate combination of medications Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 Health Practitioner Regulation National Law (NSW) Cases Cited: Bowen-James v Walton (Court of Appeal (NSW), 5 August 1991, unrep) Briginshaw v Briginshaw (1938) 60 CLR 336 Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Ibrahim v Walton (Court of Appeal (NSW), 23 April 1991, unrep) Kalil v Bray (1977) 1 NSWLR 356 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 Minister for Health v Thomson (1985) 8 FCR 213 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Popovic v Tanasijevic (No 5) (2000) 34 ASCR 134 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Rich v Australian Securities and Investments Commission [2004] HCA 42 Sudath v HCCC [2012] NSWCA 171 Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr David Kingston (Respondent) Representation: Counsel: A Britt (Applicant) R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Ltd (Respondent) File Number(s): 2016/00378820 Publication restriction: Under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law publication of the name of the patient set out in the Schedule to the complaint is prohibited except to the Medical Council of NSW. Reasons for Decision 1. David Kingston, who was a registered medical practitioner in this State but has voluntarily relinquished registration by not reapplying for it, engaged in a sexual relationship with a male sex worker, initially for payment. Subsequently that contact became a relationship with the sex worker and he engaged in providing medical services to that person. He provided prescriptions for certain medications to his partner. He does not dispute that by so doing, he was guilty of unsatisfactory professional conduct. He disputes that he was guilty of professional misconduct. Some curious events occurred, in that unusually, the respondent did not give evidence, and his former partner, referred to hereafter as "patient A", departed the witness box, never to return, by not appearing for the continuation of his cross- examination on the second projected day of his evidence. We shall come to the significance of those matters later. These are our reasons for finding that he was guilty of unsatisfactory professional conduct and professional misconduct, and for the orders we consider appropriate. At the outset we must commend counsel for the high quality of their submissions, particularly those of Ms Mathur for the respondent, which were both extremely helpful and commendably realistic. The respondent consented to a single stage hearing at which the orders we think appropriate should be made, and we shall make those orders. We need to set out here a number of documents filed by leave at the hearing, as they define the ambit of the parties' dispute. Amended complaint 1. By an amended complaint filed in the hearing room on 23 November 2017 by leave and with the consent of the respondent, David Robert Kingston, formerly a registered medical practitioner (referred to in these reasons interchangeably as either "the respondent" or "the practitioner"), the Health Care Complaints Commission ("the applicant" or "the HCCC") makes four complaints. The amended complaint (curiously worded in some respects) reads: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr David Kingston ("the practitioner") of PO Box 227 Newport Beach NSW 2106 being a medical practitioner registered under the National Law, 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 knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a medical practitioner in approximately 1973 and as a pharmacist in 1968. The practitioner has predominantly worked in management roles for pharmaceutical companies and companies organising clinical trials. The practitioner surrendered his medical practitioner registration on 4 February 2016. The practitioner's pharmacy registration lapsed on 7 January 2016. The practitioner first met Patient A in approximately 2006. Patient A was a sex worker and the practitioner hired his services. The practitioner continued a personal and sexual relationship with Patient A until 2013, having regular contact with Patient A and at times living together. PARTICULARS OF COMPLAINT ONE 1. The practitioner prescribed medication, namely Risperidone 1mg, for Patient A, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A, on or around the following dates: (a) 27 June 2009 (x10 tablets); (b) 24 September 2009 (x60 tablets); (c) 14 October 2009 (x60 tablets). 2. The practitioner prescribed medication, namely sibutramine (Reductil) 10mg (x30 tablets), for Patient A on or around 7 August 2008, which was inappropriate in circumstances where he had: (a) an ongoing personal and sexual relationship with Patient A; (b) limited experience in addiction medicine. 3. The practitioner prescribed medication, namely phentermine (Duromine), for Patient A on approximately three occasions between approximately 28 January 2009 and 5 March 2009 on the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where he had: (a) an ongoing personal and sexual relationship with Patient A; (b) limited experience in addiction medicine. 4. The practitioner prescribed medication, namely lithium carbonate (Lithicarb), for Patient A which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A, on or around the following dates: (a) 9 January 2013; (b) 3 May 2013. 5. The practitioner prescribed medication, namely diazepam (Valium), on approximately 33 occasions for Patient A between about 5 October 2008 and 8 December 2013 on the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A. 6. The practitioner prescribed medication, namely tramadol hydrochloride (Tramal), for Patient A on approximately 50 occasions between late 2009 and 10 November 2013 on the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A. 7. The practitioner prescribed medication, namely escitalopram oxalate (Lexapro), for Patient A on 11 November 2010, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A. 8. The practitioner prescribed medication, namely zolpidem (Stilnox), for Patient A on or around 5 October 2008 and on or around 8 August 2012 which was inappropriate in circumstances where he: (a) had an ongoing personal and sexual relationship with Patient A; (b) was aware of Patient A's history of psychotic episodes; (c) failed to consult or engage with Patient A's treating psychiatrist. 9. The practitioner prescribed medication, namely alprazolam (Xanax), for Patient A on approximately 22 occasions on the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where: (a) he had an ongoing personal and sexual relationship with Patient A; (b) the medication was prescribed: i.in a quantity in excess of recognised clinical guidelines; ii. without an appropriate therapeutic purpose. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: i. contravened the regulations under the National Law; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO 1. Between 1 and 31 August 2008 the practitioner failed to keep any records of medical care or treatment of Patient A in August 2008 contrary to the requirements of clause 5 of the Medical Practice Regulation 2003 (repealed). 2. Between 1 September 2008 and 30 June 2010 the practitioner failed to keep any records of medical care or treatment of Patient A contrary to the requirements of clause 4 of the Medical Practice Regulation 2008 (repealed). 3. Between 1 July 2010 and late 2013 the practitioner failed to keep any records of medical care or treatment of Patient A contrary to the requirements of clause 7 of the Health Practitioner Regulation National Law Regulation (NSW) 2010 (repealed). COMPLAINT THREE 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 knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT THREE The background to Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT THREE 1. The practitioner prescribed zolpidem for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 2. The practitioner prescribed zolpidem for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: (a) without an appropriate therapeutic purpose; (b) in a quantity in excess of recognised therapeutic standards. 3. The practitioner prescribed moclobemide (Aurorix) for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 4. The practitioner prescribed moclobemide for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the medication was prescribed in an inappropriate combination with: (a) Tramal; 5. The practitioner prescribed zopiclone (Imovane) for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 6. The practitioner prescribed zopiclone for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: (a) in a quantity in excess of recognised therapeutic standards; (b) in an inappropriate combination with zolpidem. 7. The practitioner prescribed diazepam for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 8. The practitioner prescribed diazepam for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: (a) without an appropriate therapeutic purpose; (b) in a quantity in excess of recognised therapeutic standards. 9. The practitioner prescribed Tramal for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 10. The practitioner prescribed Tramal for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: (a) without an appropriate therapeutic purpose; (b) in a quantity in excess of recognised therapeutic standards. 11. The practitioner prescribed modafinil (Modavigil) for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 12. The practitioner prescribed modafinil for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was in a combination with zolpidem and zopiclone which should not have been prescribed without the advice of or referral to a sleep physician or psychiatrist. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Complaint One Particulars 1, 2, 3, 4, 5, 6, 7, 8, and 9 and Complaint Two Particulars 1, 2 and 3 are repeated and relied upon individually. 2. Complaint One to Three and the particulars thereof are repeated and relied upon cumulatively. Further amended reply 1. At the hearing a Further Amended Reply was filed by leave by the respondent. It reads as follows: That the respondent is not a medical practitioner registered under the National Law. COMPLAINT ONE Background Admitted Particulars 1. Admitted as to risperidone 1 mg x 10 tablets. 2. Admitted. 3. Admitted. 4. Admitted. 5. Not admitted. 6. Not admitted. 7. Admitted. 8. Not admitted. 9. Not admitted. Generally as to complaint one the respondent replies that in the absence of the provision of the original scripts allegedly written by him he is not in a position to address the allegations in the particulars that are the admitted. The respondent maintains that a number of scripts allegedly written by him were forgeries. COMPLAINT TWO Background Admitted. Particulars 1. Admitted. 2. Admitted. 3. Admitted. COMPLAINT THREE Background Admitted. The Schedule B (self-prescribing by Dr David Kingston) attached to the complaint is admitted. Particulars 1, 2, 3, 5, 7, 8, 9 and 11 are admitted. Particulars 4, 6 (b), 10 (a) and 12 are not admitted. COMPLAINT FOUR Particulars 1. Not admitted. 2. Not admitted. Further and generally to the COMPLAINT-the respondent replies as follows: 1. The respondent is not a registered medical practitioner as he removed his name from the register of medical practitioners as of 4 February 2016. On or about 30 May 2016 the respondent provided a statutory declaration sworn 30 May 2016, to the applicant in these proceedings advising that he had removed his name from the register of medical practitioners and had no intention of reapplying to have his name restored to the register of medical practitioners. The respondent maintains his intention of not reapplying to have his name restored to the register of medical practitioners. 2. That there is no public interest in the applicant prosecuting this matter. 3. In the circumstances of the above two paragraphs the respondent should not be burdened with the applicant's costs if findings of unsatisfactory conduct and/or professional misconduct are made against him. Amended agreed facts 1. The respondent earlier filed a list of agreed facts, but later at the hearing by leave filed a list of amended agreed facts. They read as follows: Background 1. Dr David Robert Kingston ("the practitioner") was born on 26 February 1946. He completed a Bachelor of Pharmacy at the University of Queensland in 1966, a Bachelor of Science (pharmacology) at the University of Queensland in 1967 and a Bachelor of Medicine/Bachelor of Surgery at the University of Queensland in 1973. 2. The practitioner was first registered as a pharmacist on 14 November 1968 and remained registered until his registration lapsed on 30 November 2015. 3. The practitioner was first registered as a medical practitioner on 24 March 1976 and remained registered until he surrendered his registration on 5 February 2016. 4. The practitioner has predominantly worked in management roles for pharmaceutical companies and companies organizing clinical trials. 5. The practitioner first met Patient A (aged 23) in approximately 2006. Patient A was a sex worker and the practitioner hired his services. Patient A was born in 1983. Patient A's parents separated when he was 18 months as his father was violent towards his mother. Patient A was raised mostly by his father. 6. At age 12 Patient A returned to live with his mother in Melbourne. Patient A's mother found Patient A difficult to manage so returned him to his father at age 13. At age 16 Patient A moved into a refuge and suffered depression for the first time. At age 18 Patient A started using illicit drugs including methamphetamine and gamma hydroxybutyrate. He also abused alcohol. Patient A commenced working in the sex industry and was diagnosed with HIV at age 20. Patient A has since been diagnosed with bipolar affective disorder type II, borderline personality disorder and possibly schizophrenia. Patient A suffered auditory hallucinations frequently but they were better controlled when he commenced risperidone. 7. Patient A has been admitted to hospitals on a number of occasions between 2006 to date. A number of admissions were deemed mental and behavioural disorder due to use of stimulants and/or drug intoxication and withdrawal. During 2006 and 2013 Patient A did not have regular employment. 8. The practitioner continued a personal and sexual relationship with Patient A from 2006 until October 2013, having regular contact with Patient A. Patient A and the practitioner lived together from December 2006 till April 2007. The practitioner provided Patient A with accommodation, money, and at times, paid for Patient A's accommodation until the relationship ended Practitioner's employment 9. The practitioner currently holds the following positions: (a) Medical Adviser/Consultant for DJ Medical Pty Ltd - advising on development programs, study implementation, medical monitoring and pharmacovigilance (November 2010 - present); (b) Conjoint Senior Lecturer at the University of New South Wales - Pharmaceutical Medicine and Drug Development Program - School of Medical Sciences (November 2010 - present); (c) Senior Medical Advisor at Novotech Pty Ltd - medical monitoring for clinical studies (March 2012 - present); (d) Consultant at the George Institute for Global Health - medical advisor for the action study - cancer prevalence and cost in ASEAN countries (November 2010 - November 2016). Admissions from respondent's reply Inappropriate prescribing to Patient A Complaint One Particular 1 10. The practitioner prescribed medication, namely risperidone 1mg (x10 tablets), for Patient A, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A, on or around 27 June 2009. Particular 2 11. The practitioner prescribed medication, namely sibutramine 10mg (x30 tablets), for Patient A on or around 7 August 2008, which was inappropriate in circumstances where he had: (a) an ongoing personal and sexual relationship with Patient A; (b) limited experience in addiction medicine. Particular 3 12. The practitioner prescribed medication, namely Duromine, for Patient A on approximately three occasions between approximately 28 January 2009 and 5 March 2009 on the dates and in the quantities as set out in Schedule A of the Complaint, which was inappropriate in circumstances where he had: (a) an ongoing personal and sexual relationship with Patient A; (b) limited experience in addiction medicine. Particular 4 13. The practitioner prescribed medication, namely lithium carbonate, for Patient A which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A, on or around the following dates: (a) 9 January 2013; (b) 3 May 2013. Particular 7 14. The practitioner prescribed medication, namely escitalopram oxalate, for Patient A on 11 November 2010, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with Patient A. Complaint Two Record keeping for Patient A 15. Between 1 and 31 August 2008 the practitioner failed to keep any records of medical care or treatment of Patient A in August 2008 contrary to the requirements of clause 5 of the Medical Practice Regulation 2003 (repealed). 16. Between 1 September 2008 and 30 June 2010 the practitioner failed to keep any records of medical care or treatment of Patient A contrary to the requirements of clause 4 of the Medical Practice Regulation 2008 (repealed). 17. Between 1 July 2010 and late 2013 the practitioner failed to keep any records of medical care or treatment of Patient A contrary to the requirements of clause 7 of the Health Practitioner Regulation National Law Regulation (NSW) 2010 (repealed). Complaint Three Self-prescribing 18. The practitioner prescribed zolpidem for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 19. The practitioner prescribed zolpidem for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: (a) without an appropriate therapeutic purpose; (b) in a quantity in excess of recognised therapeutic standards. 20. The practitioner prescribed moclobemide for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 21. The practitioner prescribed zopiclone for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 22. The practitioner prescribed diazepam for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 23. The practitioner prescribed diazepam for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: (a) without an appropriate therapeutic purpose; (b) in a quantity in excess of recognised therapeutic standards. 24. The practitioner prescribed Tramal for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy "Guideline for self-treatment and treating family members". 25. The practitioner prescribed modafinil for himself on the dates and in the quantities as set out in Schedule B which was inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales policy 'Guideline for self-treatment and treating family members'. Legal principles and legislative framework 1. Mr Britt for the applicant provided written submissions as to these preliminary matters, and in them he summarised correctly the legal principles applicable to proceedings of this kind, and we gratefully adopt these submissions. Although authority is given for all of them, we do not think it is required in large part in the current context, as they appear uncontroversial. We say this because the respondent also made submissions on the same subjects which appear to be essentially in accord with those of the applicant. It is convenient in those circumstances to summarise those of the applicant in these respects, with which we agree. It is to be noted that we have not dealt here with the question of inferences to be drawn from the fact that the respondent did not give evidence, and from the fact that, as we shall explain later, patient A did not return to the hearing for the completion of his cross-examination on the second projected day of his evidence. We shall come to those matters later. 2. In brief summary, and dealing only with those of particular relevance to the present case, the applicant's submissions on legal principles (with the exception of inferences from the absence of witnesses) and the legislative framework, with which, as we have said, we agree, are as follows. 3. The Tribunal's jurisdiction is primarily protective in nature, rather than punitive. Authority for this uncontroversial proposition is legion, but in the current circumstances not required. 4. In exercising its protective jurisdiction, the Tribunal must consider the maintenance of the standards of the medical profession, preservation of public confidence in it and the protection of the community. The protection of public safety and health is paramount: see s 3A of the Health Practitioner Regulation National Law (NSW)(the 'National Law'). 5. Additional considerations such as deterrence against others engaging in similar conduct are a necessary part of maintaining the standards of the medical profession and thereby insuring faith in it and public safety. 6. The Tribunal should therefore consider any need to protect the public interest against further misconduct by the practitioner, the need to protect the public through general deterrence of other practitioners, the need to do so by reinforcing high professional standards and denouncing transgressions, the maintenance of public confidence in the profession and the desirability of making available to the public any special skills possessed by the practitioner. The second, fourth and fifth of these considerations are relevant in considering the protective orders sought by the applicant. The last does not apply in this case. 7. While the Tribunal's orders are not punitive in purpose, an unavoidable effect of protective orders may in some cases have an incidentally punitive effect. This must not however be their purpose. 8. Part 8 in s 144 of the National Law outlines the possible grounds of complaint against a health practitioner, including that they have been guilty of unsatisfactory professional conduct or professional misconduct. Importantly, "unsatisfactory professional conduct" is defined in s 139B of the National Law as including: … (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. Under s 139B(1)(b) contravention of either the National Law or of the Regulations made under the National Law is grounds for finding unsatisfactory professional conduct. 2. Part 4 clause 7 (1) of the Health Practitioner Regulation (New South Wales) Regulation 2010 requires a medical practitioner, in accordance with that part and Schedule 2, to keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. Subclause (2) provides that it is not an offence, but may constitute behaviour for which health, conduct or performance action may be taken. 3. Also importantly, s 139E of the National Law defines "professional misconduct" as either unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 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. 4. The Tribunal is not bound by the rules of evidence: Civil and Administrative Tribunal Act 2013 (NSW), s 38(2). 5. But the Tribunal is subject to rules of procedural fairness: Sudath v HCCC [2012] NSWCA 171 at [75]. Although it may inform itself in any way it thinks fit, decisions must still be based on material which tends logically to show the existence or non-existence of the facts relevant to the issues to be determined: Sudath at [79]. 6. In dealing with more than one complaint about a registered health practitioner, the Tribunal may have regard to all of the evidence before it, whether it arose in relation to a complaint in respect of which the Tribunal is making a finding or any other complaint or complaints, when making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct. 7. Proceedings of the present nature are referred to as an inquiry by the National Law. These matters stamp the Tribunal's work with an inquisitorial model, and it is not a court and should not be treated as a court of strict pleadings, and complaints are not pleadings. The Tribunal makes an evaluative judgement as to the seriousness of the misconduct and the inferences which should be drawn. Nevertheless judicial power is being exercised: see Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45. 8. The burden of proof before the Tribunal is the Briginshaw test, requiring reasonable satisfaction on the balance of probabilities, while having regard firstly to the gravity and importance of the issues to be determined, and the possible consequences of a finding of guilt: see Briginshaw v Briginshaw (1938) 60 CLR 336 at [360]-[363] and other authorities. But a number of authorities caution that this test does not require that the Tribunal be "comfortably satisfied", for this implies a higher standard than the balance of probabilities. 9. Importantly in this context, properly read, it is the applicant's submission that a reliance on the pharmaceutical records in evidence in this case concerning prescriptions, which on their face value are written by the respondent for himself and patient A, may create "reasonable satisfaction" in the mind of the Tribunal that they were written by the respondent, since it is not based on inexact proofs, indefinite testimony or indirect inferences (see Briginshaw). Although the applicant's submissions appear to state the reverse proposition, we think this is a slip. We shall return to this submission later. 10. As to the role of the Tribunal, it must consider whether, as a matter of evidence, some if not all of the particulars of the complaint are made out. Correctly, the applicant submits that the admissions of the respondent will make such consideration easier in respect to some complaints. Correctly, the applicant submits that the Tribunal must then consider whether the established particulars amount either to unsatisfactory professional conduct or professional misconduct within the statute, this task again having been made easier by the admissions of the respondent in respect of complaints 1, 2 and 3 regarding unsatisfactory professional conduct. Again correctly, the applicant submits that only if the Tribunal is satisfied of either unsatisfactory professional conduct or professional misconduct will it need to consider what, if any, protective orders are to be made pursuant to sections 149, 149A, 149B and 149C of the National Law. Inferences from the absence of witnesses 1. It is convenient at this point to deal with inferences, if any, to be drawn from the absence of witnesses before dealing with the evidence of the particular complaints, because the parties in their submissions dealt with this subject before coming to the evidence of the complaints. Rather than separately setting out our consideration of the parties' submissions on this subject, it is convenient as we summarise them to indicate our consideration of them. The applicant's submissions as to appropriate inferences, omitting some case citations for brevity, are as follows: Failure of the Respondent to give evidence 1. The Respondent did not give evidence despite being available in the sense he was present in the Tribunal on the second day. 2. The Tribunal is entitled to draw inferences from the failure of the respondent to attend the hearing and from his "silence". 3. In Bowen-James v Walton (NSWCA, 5 August 1991, unrep), After referring to passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued: "In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." [underlining added] 4. But the above comments in Bowen-James may need to be followed with caution in the light of Rich v Australian Securities and Investments Commission [2004] HCA 42]. The Tribunal as a matter of law may draw adverse inferences as a result of the Respondent's failure to give evidence as to explanations to his conduct. 5. A specialist Tribunal is not obliged to draw an adverse inference in the absence of an explanation from the respondent. Such an obligation would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation. 6. The Respondent provided no reason for the failure to give evidence. 7. Those areas in which he could have given evidence and then have that evidence tested go to: how the pharmaceutical records in respect to the non-admitted particulars of Complaint One which demonstrate the scripts for Patient A from the Respondent were not actually from the Respondent; and how the non-admitted matters of Complaint 3 were either not contrary to the Guidelines for self-treatment and treating family members including whether such medications were initiated by the Respondent and/or what was the appropriate therapeutic purpose of the medications and the basis for quantity. 8. In respect to the first of these matters the Respondent conceded that if the non-admitted particulars of Complaint One were made out, then that by itself would demonstrate professional misconduct which demonstrates the importance of this matter in the proceedings. This latter matter also demonstrates the potential adverse consequences for the practitioner of failing to proffer an available explanation. 9. The Tribunal is entitled to draw adverse inferences from the Respondent's silence on matters peculiarly within his knowledge which certainly includes all the non-admitted matters in Complaints One and Three. 10. Such an adverse inference can be drawn notwithstanding the Respondent has provided a statutory declaration undertaking never to work as a medical practitioner again; not subsequently working in the provision of health services; providing a statement to the Commission; admitting some of the complaints; and participating in the preparation of an agreed statement of facts does not mean an adverse inference may not be drawn against the Respondent. The Tribunal may draw an inference against the Respondent in circumstances where he has provided responses to the Applicant and otherwise co-operates with the Applicant, but is not prepared to be cross-examined as to the statement's contents. 11. The entitlement to draw any inference adverse to the interests of the Respondent to those circumstances where his evidence about a particular matter would have been of assistance in prosecuting any particular situation which he had advocated in his interests for the purpose of the proceedings. The Tribunal is entitled to rely on such evidence as is available about a particular matter in the absence of any evidence from the Respondent which is prima facie available to him, assuming, of course, that it is safe and appropriate to rely on the evidence otherwise available. 12. It is significant that the Respondent's failure to give evidence deprived the Tribunal of the opportunity to see and hear the Respondent. For instance, it was not possible for the Tribunal to understand or assess his conduct or possible rationale for self-prescribing and any explanation for the scripts filled by Patient A prima facie from the Respondent. 13. In all the circumstances the Tribunal should draw a negative inference against the Respondent. The failure of the Respondent to give evidence and be cross examined on the replies he provided the Applicant (Ex A Tabs 10, 11 and 13) mean the Tribunal should draw the inference that his evidence in the proceedings would not have assisted his case in providing explanations in respect to those matters not admitted in Complaints One and Three and therefore ignore those unsworn and untested explanations for the Respondent's conduct. 14. Secondly, the failure of the Respondent to give evidence means the Tribunal is entitled to rely upon the pharmacy records to establish the non-admitted particulars of Complaint One. 15. Reliance on these records is also consistent with the presumption of regularity. The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act". 16. The presumption of regularity is by no means restricted, in its application, to public acts or acts of public officials. 17. The presumption can be rebutted on the evidence but no such evidence exists here. 18. Further, in the absence of the Respondent giving evidence there is no cogent evidence for the reasons he was self prescribing in respect to the disputed particulars of Complaint three or any explanation to rebut the prescribing in respect to the contested particulars in Complaint one. The material found in Ex A Tab 10, 11 and 13 is not sworn nor was it tested in cross-examination. 1. Put simply, we agree with the applicant's submissions just set out. In particular, we agree with the following propositions which we draw from the applicant's submissions: 1. In all the circumstances the Tribunal should draw a negative inference against the Respondent. The failure of the Respondent to give evidence and be cross-examined on the replies he provided the Applicant (Ex A Tabs 10, 11 and 13) mean the Tribunal should draw the inference that his evidence in the proceedings would not have assisted his case in providing explanations in respect to those matters not admitted in Complaints One and Three and therefore ignore those unsworn and untested explanations for the Respondent's conduct. 1. We accept this proposition because there is absolutely no explanation from the respondent for his failure to give evidence which one might infer he knew might have assisted his case, and, one might infer, in full possession of legal advice from his counsel at the conclusion of the applicant's case at the hearing as to the possible effect of his failure to give evidence. 2. As to the respondent's failure to give evidence, put simply, we agree with the applicant's submission that the Tribunal is entitled to draw adverse inferences from the respondent's silence on matters peculiarly within his knowledge, which certainly includes all the non-admitted matters in complaints 1 and 3. 3. We agree that such an adverse inference can be drawn notwithstanding that the respondent has provided a statutory declaration undertaking saying he intends never to work as a medical practitioner again; has not subsequently worked in the provision of health services; has provided a statement to the Commission; has admitted some of the complaints; and has participated in the preparation of an agreed statement of facts. These matters do not necessarily produce the result that an adverse inference may not be drawn against the Respondent. We agree that the Tribunal may and should draw an inference against the respondent in circumstances where he has provided responses to the applicant and otherwise co-operates with the applicant, but yet is not prepared to be cross-examined as to the statement's contents or as to his responses generally. 2. Secondly, the failure of the respondent to give evidence means the Tribunal is entitled to rely upon the pharmacy records to establish the non-admitted particulars of Complaint 1. 1. We agree with this proposition because, apart from a bare assertion of possible forgery of prescriptions in his Further Amended Reply and in his unsworn responses to the applicant's enquiries, the respondent has called no evidence to suggest that the pharmaceutical records may be in any way inaccurate. 3. Reliance on these records is also consistent with the presumption of regularity. The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act". 1. We agree with this proposition because it seems to us that the presumption of regularity does apply here. One may assume, in the absence of evidence to the contrary, and in the presence of a legal obligation to keep such records accurately, that the pharmaceutical records were kept regularly. This appears to us to follow from authority cited by the applicant, namely McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 per Griffith CJ (Barton and O'Connor JJ agreeing). 4. The presumption of regularity is by no means restricted, in its application, to public acts or acts of public officials. 1. We agree with this proposition. Again this follows from authority cited by the applicant, namely Popovic v Tanasijevic (No 5) (2000) 34 ASCR 134 at [85] per Olssen J. 5. The presumption can be rebutted on the evidence but no such evidence exists here. 1. We agree with this proposition, again because the respondent has not sought to rebut this proposition by calling sworn evidence in his own case or drawing attention to evidence in the applicant's case (of which there is none) rebutting the presumption of regularity relied upon by the applicant here. 6. Further, in the absence of the Respondent giving evidence there is no cogent evidence for the reasons he was self-prescribing in respect to the disputed particulars of Complaint 3 or any explanation to rebut the prescribing in respect to the contested particulars in Complaint 1. The material found in Ex A Tab 10, 11 and 13 is not sworn nor was it tested in cross-examination. 1. We agree with this proposition because it is self-evidently the case that there is no sworn evidence from the respondent, nor any evidence to which he might point in the applicant's case, as to the reasons he was self-prescribing in respect of the disputed particulars of complaint three, nor any evidence in rebuttal of the disputed particulars in the same respect in complaint 1. It is also true that the material found in Ex A Tab 10, 11 and 13 is not sworn nor was it tested in cross-examination. We fail to see in these circumstances that it should be regarded by us as reliable. 2. The respondent's submissions as to the failure of the respondent to give evidence are as follows: 1. The respondent submits that the failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. The rule in Jones v Dunkel relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case: Jones v Dunkel, supra at 320. However, an unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support that inference: Health Care Complaints Commission v Liu [2017] NSWCATOD 18, [87]; Health Care Complaints Commission v Vega [2015] NSWCATOD 62, [128]; Gaskell v Denkas Building Services Pty Ltd (2008) NSWCA 35, [48]. 1. This proposition is correct as a matter of law, as the respondent sets out, and it is sufficient to say that we agree with it. 2. It can be in some circumstances sufficient that there is an explanation for the absence of the evidence, the bona fides of which explanation is unquestioned and accepted: Elleray v Rail Corporation New South Wales [2013] NSWTAB 7, [132]. 1. Again this proposition is correct as a matter of law and we agree with it. 3. In this case the respondent did not give evidence. He asserted in correspondence with the Commission that it was his belief the scripts the subject of Complaint One- were forgeries. In the absence of those scripts being available for comment and scrutiny by the respondent, it is submitted that no adverse inference in accordance with Jones v Dunkel would be drawn in this case regarding findings relevant to Complaint 1. We submit that the respondent's election not to give evidence in those circumstances is entirely understandable. This is not a case where the respondent had matters "peculiarly within his knowledge". Precisely the opposite- namely he has no knowledge as to how the dispensing outlined in Schedule A came to be, save for 6 scripts- and believes that he has been the subject of fraud." 1. We do not agree with this proposition. Apart from the respondent's bare assertion, untested in evidence, that he has no knowledge as to how the dispensing outlined in Schedule A came to be, apart from six scripts, he provides no evidence that this is so, nor any basis upon which it might be inferred that he has been the subject of fraud. On the contrary, we consider that the respondent could and should have given evidence in relation to these matters and failed to do so in full knowledge that they were relevant and perhaps crucial to his case, and that in these circumstances it may be inferred against him that he is aware of how the dispensing outlined in Schedule A came to be, and has no basis, apart from sheer speculation, for his allegation of fraud, which we do not accept. 4. The Court of Appeal in the decision of Lucire v Health Care Complaints Commission [2001] NSWCA 99 held at [132]: "…there is no support for the proposition that a specialist Tribunal (whether a jury or a disciplinary Tribunal) is obliged to draw adverse inferences in the absence of an explanation from the respondent. Such an obligation (at least as expressed in such absolute terms) would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation." [Emphasis added]. 1. As a matter of law this proposition is self-evidently correct, so far as it goes. We do not consider ourselves to be under an obligation to draw an adverse inference against the respondent to the effect that his evidence would not have materially assisted this case. We simply consider, from reasons already expressed, that in circumstances where the respondent self-evidently chose not to give evidence at the conclusion of the applicant's case, with legal advice available to him as to the possible effect of this step, and without any evidentiary explanation for it, that an adverse inference ought be drawn to the effect set out above. 5. Lucire is consistent with previous authority on the question of whether adverse inferences could be drawn from a practitioner's election not to give evidence. In Health Care Complaints Commission v. Wingate (2007) 70 NSWLR 323, at [43]-[51] per Basten JA, with whom Harrison AJA agreed, referred to earlier decisions of the Court in which the effect of a medical practitioner's right to silence in the context of disciplinary proceedings was considered, including Edelsten v. Richmond (1987) 11 NSWLR 51, Ibrahim v. Walton (Court of Appeal, 23 April 1991, unreported) and Bowen-James v. Walton (Court of Appeal, 5 August 1991, unreported). Although in these earlier cases the Court considered the question in terms of the practitioner's right to silence on the one hand and the practitioner's duty of candour on the other, there was no suggestion that the practitioners were obliged to give evidence. Rather, the Court considered that adverse inferences could (not would) be drawn against them in disciplinary proceedings if they did not. 1. Again this proposition is self-evidently correct as a matter of law, as far as it goes. There is no suggestion in law that the practitioner's duty of candour extends to an obligation to give evidence. So to say, however, does not protect the practitioner from the risk that if they choose not to give evidence as to material matters that could have been raised in reply to the applicant's case, an adverse inference might be drawn that such evidence as they might have given might not have materially assisted their case. 2. On 25 November last Ms Mathur filed further submissions for the respondent to similar effect. What we have already said is, we think, sufficient reply to them. Failure of Patient A to attend on the second day 1. The Applicant's submissions on this subject are as follows. 1. The Applicant accepts the unexplained failure of Patient A to attend for cross-examination on day two of the hearing means that less weight could be given to his evidence including his statement at Ex A Tab 4 over which he gave evidence on oath was true and correct to the best of his recollection. 2. However, in this case the Tribunal is faced with the situation of potentially considering the sworn evidence and responses of Patient A that were subject to cross-examination and the non-sworn and non-cross-examined responses of the Respondent. 3. The rule in Jones v Dunkel does not apply in respect to the failure of Patient A to attend for cross-examination. This rule operates where there is an unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. In this case the Applicant did call Patient A. 4. The only inference that is available to be drawn would be to the extent that the Patient A's evidence was contradicted by the sworn evidence of the Respondent (of which there is none) the latter if it existed would be preferred. 1. We disagree in part with these submissions, but it is convenient to deal with the reasons for our view when dealing with the respondent's submissions, with which we agree, but again only in part. 2. The respondent's submission on the same subject is as follows: The Commission bears the onus of proof. Patient A failed to complete his evidence in circumstances which could clearly lead to a finding that his re-presentation on day 2, to continue answering questions under cross-examination would not have assisted in proving the allegations he has made against the respondent. No evidence at all was forthcoming as to why he did not attend on day two. Although his mental illness is undisputed, in the absence of evidence, the respondent urges the Tribunal to exercise extreme caution before finding his mental illness as the basis for his non-attendance. It is equally plausible- and we would say more likely than not- that his non-attendance on day two whilst part way through cross-examination, was by inference, that his continued evidence would not have assisted his case. The Tribunal is in the best position to make such a finding, having had an opportunity to see and assess his demeanour in the witness box on day one. 1. We agree in part with this submission, for the reasons the respondent gives. There is absolutely no explanation from the applicant, nor could there have been, for the witness's failure to appear on the second day when he was to be cross examined and must have known it. We do not however agree that the witness must have known that his further evidence would not assist "his case". It is by no means a mere technical matter that the proceedings here have been brought by the applicant itself, not by patient A. It is more correct to say, we think, that he must have known that his evidence-in-chief would likely be undermined in significant respects by cross-examination, and chose not to take that risk by his failure to attend. However he was clearly distressed by cross-examination on day one and our impression was that he did not subject himself to further cross-examination on day 2, so as to avoid further distress. We think this was the main reason, rather than it being a purely rational decision to avoid having his evidence undermined. 2. Our other area of disagreement with the respondent's submission here is that, by implication, it suggests that the evidence of patient A ought to be rejected. True it is that it should be regarded with considerable caution, and this has caused us a deal of anxious reflection. In many respects to which the respondent draws attention, with which we shall deal later, patient A's evidence appears unreliable. In the end, however, we cannot leave out of calculation the fact that the respondent chose not to give evidence at all, in full knowledge of the content of the evidence of patient A. As already set out, we think it may be inferred that the respondent took this step in the knowledge that his evidence would not have materially advanced his case. We think this is particularly so in the areas where his evidence might have contradicted the evidence of patient A, albeit that it is untested in cross-examination, which, as we have said, means that we must approach it with considerable caution. In the end, however, despite considerable hesitation, we have in these circumstances preferred the evidence of patient A in written and oral form, so far as it goes, to the unsworn responses of the respondent to the applicant's enquiries, in which he disputes the prescribing alleged by patient A in the non-admitted particulars of the complaints. We shall explain this later with more particularity. The non-admitted particulars of the Amended complaint 1. For reasons of space, and because of the fact that the respondent's disagreement with the applicant's case is only in certain limited areas, as we shall explain later, it is convenient to summarise the parties' submissions as to these matters rather than setting them out in full. Again we shall set out our consideration of the parties' submissions as we recount them. Applicant's submissions on non-admitted complaints 1. It is convenient to set out the applicant's submissions against the non-admitted particulars in the amended complaint. We do not propose to set out in detail the material at the various tabs in exhibit A, the applicant's medical folder, relied upon by it on each non-admitted complaint, although we have carefully examined it. It consists to a considerable degree of the statements of patient A to various persons, orally and in statement form. The reason is that the respondent's argument is not that if accepted, the documentary evidence does not prove the prescribing concerned, but that we should not accept it, predominantly because patient A is an unreliable witness. The respondent submits that patient A is an unreliable witness for a number of reasons, to which we shall come. As we shall indicate, it is our view that to a considerable extent this is true, but that we should not take the step of rejecting his evidence in circumstances where, for unexplained reasons, the respondent has failed to take the witness box to given sworn evidence to contradict what patient A says, both as recorded in the documentary evidence and in the witness box in sworn evidence, albeit untested by cross-examination. In these circumstances, according to legal principle relied on by the applicant, we may more readily accept the evidence of the patient and we do so. (a) Complaint 1 Particular 5 The practitioner prescribed medication, namely diazepam, on approximately 33 occasions for patient A between about 5 October 2008 and 8 December 2013 at the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with patient A. 1. The documentary evidence relied upon by the applicant here consists of exhibit A Tabs 3, 4 (the statement of patient A at [20]), 10 (noting that in his statement the respondent admitted some prescribing of Diazepam), 13 (again noting the last mentioned admission by the respondent), 17 pages 1, 3, 4, 5, 6, 7, tab 19 pages 3, 4, 5, 6, 7, tab, 21, pages 1, 2, 3, tab 22, pages 3, 4, 6, 8, tab 23 pages 1, 2, 3, 4, tab 26 page 2, tab 28 page 1, and tab 30 pages 1, 2,3. It is sufficient to say that this documentary evidence establishes the prescribing on the part of the respondent which the applicant alleges, subject of course to the respondent's submissions as to possible fraud, and the general unreliability of patient A's evidence both in documentary and oral form, with which we shall deal later, and with which we disagree. We consider that the documentary evidence relied upon by the applicant is prima facie sufficient on the Briginshaw standard to establish the prescribing by the respondent in the context of an ongoing personal and sexual relationship with patient A as alleged by the applicant. Of course it does not and cannot establish of itself that the prescribing was inappropriate. 2. Again we have not set out in detail the evidence located at the pages relied upon by the applicant under each tab because the respondent's case is not that the tabs do not demonstrate what is asserted by the applicant as to apparent prescribing by the respondent, so far as it goes, but that the evidence of patient A in both documentary and oral form is unreliable, and that the pharmacy records are not the "best evidence" of such prescribing in the absence of the original prescriptions, and that the absence of these original documents leaves open the possibility of fraud. We shall deal later with the respondent's submissions in this regard. 3. To prove that the prescribing by the applicant which we consider established (subject to the issues of the reliability of the evidence of patient A and of the pharmacy records raised in the respondent's submissions) was inappropriate, the applicant relies on the written and oral evidence of Dr Howle, an experienced general practitioner from Tamworth called in the applicant's case. Dr Howle's expertise was not attacked in any way by the respondent, and we accept that his training, study and experience is sufficient to enable him to express the opinions he did. The applicant relies (in the unfortunate absence of a transcript) in its submissions on its notes of Dr Howle's oral evidence, the accuracy of which is not disputed in the respondent's submissions, and we accept it. Again it is convenient to summarise Dr Howle's evidence rather than setting it out in full, in view of the limited nature of the respondent's defence. 4. In summary, Dr Howle's evidence in cross-examination that the prescribing by the respondent in Schedule A fell well below the standard expected of a competent practitioner in the position of the respondent was reliant on the accuracy of the Schedule, which reflected the pharmaceutical records relied upon by the applicant. He repeated his view that the prescribing fell well below the standard expected of a competent practitioner in the circumstances of the respondent. He said that when treating any patient one looked at the global picture, as to what other medications the patient is on and their possible side-effects and other illnesses. He said that prescribing of the drug concerned should be done by an expert, not by a friend, that is, a practitioner experienced in assisting patients to withdraw from amphetamines, such as a drug and alcohol expert or psychiatrist. 5. In summary Dr Howle said in re-examination that the respondent should not have been prescribing any Diazepam, and that assuming he was prescribing some Diazepam to patient A, such prescription to a patient can have all sorts of consequences, and that it should only be for short-term use, where the patient was supposedly seeing other practitioners for various mental health issues. 6. In summary, Dr Howle said in response to questions from Dr Diamond that the issue is not one of clinical practice but more to do with the appropriateness of prescribing in a close intimate relationship. He agreed that when somebody who is not a treating doctor takes responsibility for prescribing medicines in the absence of being responsible for clinical care, one of the potential dangers is to divert the patient from proper care, and that once one prescribes medicine, one has a clinical responsibility to make sure, whoever is the ongoing carer, that one has all of the information used to prescribe the drug in front of one. When asked what was his opinion if the medications were prescribed in the context of the intimate relationship outlined, if they are habit-forming or dependence forming substances that become more readily available to the patient because of the close friendship, Dr Howle said that what was prescribed in that situation is totally inappropriate. He agreed that this opinion applied if the admitted medications included Reductil and Tramal. 7. Noting that the position of the respondent is not that Dr Howle's evidence should not be accepted on a prima facie basis, but that the prescribing criticised by Dr Howle in the disputed particulars remains unproven, it is our view that subject to the issue of possible fraud in relation to apparent prescribing by the respondent raised in the respondent's submissions, with which we shall deal later, it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (b) Complaint 1 Particular 6 The practitioner prescribed medication, namely Tramadol hydrochloride, for patient A on approximately 50 occasions between late 2009 and 10 November 2013 on the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where he had an ongoing personal and sexual relationship with patient A. 1. In summary, the documentary evidence relied upon by the respondent is exhibit A tab 3 page 3, tab 4 (the statement of patient A at [26]), tab 13 page 3 (where the respondent admits some prescribing of Tramadol), tab 17 pages1, 2, 3, 4, 5, 6, 7, tab 19 pages 2, 3, 4, 5, 6, 7, tab 22 pages 5, 6, tab 23 page 2,, tab 26 pages 1 and 2, tab 2 page 18 and tab 30 page 1. 2. It is sufficient to say that we consider that the documentary evidence relied upon by the applicant is prima facie sufficient on the Briginshaw standard to establish the prescribing by the respondent alleged by the applicant under this disputed particular, and the existence of an ongoing personal and sexual relationship with patient A. Again it does not and cannot establish of itself that the prescribing was inappropriate. Again we shall not set out the pages under each tab relied upon by the applicant because the respondent's case is not that the documentary evidence does not establish on a prima facie basis the prescribing by the respondent alleged by the applicant in this disputed particular, but that the evidence of patient A is unreliable in both oral and documentary form, and that the pharmacy records are not the "best evidence" in the absence of the original prescriptions allegedly written by the respondent. As we have said, we shall deal with these issues later in the context of the respondent's submissions. 3. To prove that the prescribing under this disputed particular was inappropriate, the applicant relies on the oral evidence of Dr Howle, again using its undisputed notes of it. In summary, Dr Howle's evidence was that the respondent should only have prescribed any Tramadol to patient A if it was a one-off emergency use, which may be reasonable. He said he did not think it was appropriate to provide it on a prescription basis. The respondent also relied on the evidence of Dr Howle in response to questions by Dr Diamond set out above under the preceding particular concerning Tramadol, which we note. 4. It is again our view that subject to the issue of possible fraud in relation to apparent prescribing by the respondent raised in the respondent's submissions, with which we shall deal later, it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (c) Complaint 1 Particular 8 The practitioner prescribed medication, namely Zolpidem, for patient A on or around 5 October 2008 and on or around 8 August 2012 which was inappropriate in circumstances where he: a) had an ongoing personal and sexual relationship with patient A; b) was aware of patient A's history of psychiatric episodes; c) failed to consult or engage with patient A's treating psychiatrist. 1. The documentary evidence relied upon by the applicant is exhibit A tab 17 page 5. This is a Schedule based on pharmaceutical records of apparent prescription by the respondent to patient A, and page 5 establishes the prescriptions alleged. Again, subject to the issues of the reliability of the evidence of patient A and of the pharmaceutical records raised in the respondent's submissions, with which we shall deal later, this documentary evidence is in our view sufficient on the Briginshaw standard to establish the prescribing by the respondent alleged in this disputed particular and the existence of an ongoing personal and sexual relationship with patient A. Again it does not and cannot prove of itself that the prescribing was inappropriate. 2. To prove that this prescribing was inappropriate the respondent relies again on the oral evidence of Dr Howle in response to questions by Dr Diamond summarised above. 3. It is again the our view that subject to the issue of possible fraud in relation to apparent prescribing by the respondent raised in the respondent's submissions, with which we shall deal later, it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (d) Complaint 1 particular 9 The practitioner prescribed medication, namely alprazolam, for patient A on approximately 22 occasions on the dates and in the quantities as set out in Schedule A, which was inappropriate in circumstances where; a) he had an ongoing personal and sexual relationship with patient A; b) the medication was prescribed: (i) in a quantity in excess of recognised clinical guidelines (ii) without an appropriate therapeutic purpose. 1. The documentary evidence relied upon by the applicant is exhibit A tab 3 page 4, tab 4 page 4 (statement of patient A at [29]), tab 17 pages 1, 4, 5, 6, 7, tab 21 page 3, tab 22 pages 4, 5, 6, 7, tab 23 page 2, tab 26 pages 1, 2, tab 25 page1, tab 29 page 1, tab 30 pages 1, 2. Again, subject to the issues of the reliability of the evidence of patient A and of the pharmaceutical records raised in the respondent submissions, with which we shall deal later, this documentary evidence is sufficient on the Briginshaw standard to establish the prescribing by the respondent alleged in this disputed particular and the existence of an ongoing personal and sexual relationship with patient A. Again it does not and cannot prove of itself that the prescribing was inappropriate. 2. The applicant relies again on the oral evidence of Dr Howle in response to questions from Dr Diamond already set out above. It is again our view that subject to the issue of possible fraud in relation to apparent prescribing by the respondent raised in the respondent's submissions, with which we shall deal later, it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (e) Complaint 1 Particular 4 The practitioner prescribed Moclobemide for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the medication was prescribed in an inappropriate combination with: a) Tramadol; On this complaint the respondent admits to prescribing but does not admit that it was contrary to recognised clinical standards. 1. The documentary evidence relied upon by the applicant to prove that the prescribing under this particular was contrary to recognised clinical standards is exhibit A is tab 6 pages 11, 12, 28 (being the expert report of Dr Howle). The applicant relies also on the evidence of Dr Howle given in cross-examination as set out above. It is again our view that it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (f) Complaint 5 Particular 6 The practitioner prescribed Zopiclone for himself on the dates and in the quantities set out in Schedule B contrary to recognised clinical standards in that the prescribing was: a) in a quantity in excess of recognised therapeutic standards; b) in an inappropriate combination with Zolpidem 1. On this complaint the respondent again admits the prescribing but does not admit that it was contrary to recognised clinical standards. 2. The documentary evidence relied upon by the applicant to prove that the prescribing under this particular was contrary to recognised clinical standards is exhibit A tab 6 pages 11-12 being the expert report of Dr Howle. It is again our view that it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (g) Complaint 3 Particular 10 The practitioner prescribed Tramadol for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was: a) without an appropriate therapeutic purpose; b) in a quantity in excess of recognised therapeutic standards. 1. On this complaint the respondent again admits the prescribing but does not admit that it was contrary to recognised clinical standards. 2. The documentary evidence relied upon by the applicant to prove that the prescribing under this particular was contrary to recognised clinical standards is exhibit A tab 6 page 12, being the expert report of Dr Howle. 3. The applicant relies also on the oral evidence of Dr Howle in cross-examination, which was in summary noted as follows. It is not reasonable to treat arthritis of the knee with Tramadol, because it is used for short-term relief, and is not the first line of treatment for arthritis. Dr Howle said he was given no information that the respondent had arthritis, nor any x-ray evidence that he had arthritis. He said that under certain circumstances one could use Tramadol for an exacerbation of lumbar pain. He said that most arthritic conditions can have flare ups which might last hours or days, and it is reasonable to use Tramadol as a short-term relief but not to use it for a chronic condition. He said that when using Tramadol for exacerbations and pain of that kind, one would want to get advice from the practitioner who was prescribing it. It is again our view that it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. (h) Complaint 3 Particular 12 The practitioner prescribed Modafinil for himself on the dates and in the quantities as set out in Schedule B contrary to recognised clinical standards in that the prescribing was in combination with Zolpidem and Zopiclone which should not have been prescribed without the advice of or referral to a sleep physician or psychiatrist. 1. On this complaint the respondent again admits the prescribing but does not admit that it was contrary to recognised clinical standards. 2. The documentary evidence relied upon by the applicant is exhibit A tab 6 page 13 being the expert report of Dr Howle. It is again our view that it is appropriate to find, based on the evidence of Dr Howle, which we see no reason not to accept, that the prescriptions alleged in this particular were inappropriate and fell well below the standard expected of a competent practitioner in the position of the respondent. Complaint 1 1. As to the non-admitted particulars of complaint 1, the applicant's submissions generally and our response to them are in summary as follows. The applicant submits that the respondent's response is as follows, at its highest. The respondent was unaware of how much had happened (by way of prescribing) until he saw the list of medicines (see exhibit A tab 13 page 2). The respondent claims fraud especially in light of the amount of Tramadol prescriptions being dispensed so close together (again see exhibit A tab 13 page 2). Patient A knew where the scripts were kept (again see exhibit A tab 13 page 2). The respondent on one occasion found patient A tearing scripts out of the prescription book at the time unspecified (again see exhibit A tab 13 page 2). Based on the prescription lists the respondent alleges that patient A must have done it on several occasions (which the applicant submits is a theory not based on the evidence) (again see exhibit A tab 13 page 2). The respondent is unable to say definitely what scripts he prescribed patient A (again see exhibit A tab 13 page 2). Two scripts look suspect and a third may be (again see exhibit A tab 13 page 2). 2. Correctly in our view, the applicant's response to the respondent's allegations is in summary are as follows. In respect of the two suspect looking scripts, they were filled by a pharmacist in October and November 2013, long after the respondent cohabited with patient A and well and truly after the ending of their relationship. As to the other three scripts, the first one came from a different script book from scripts 2-5, given the different addresses of Dr Kingston on the face of the scripts. The remainder may have come from the same book or similar book given the format of the scripts. The second script is dated 13 July 2012 and the others follow that date. 3. The applicant submits that assuming that all of the non-admitted scripts were in fact taken by patient A, it would have amounted to 106 prescriptions taken over a four-year period, and there is no explanation as to how a large number of scripts could have been taken. 4. The applicant further submits that if the scripts were in fact taken by patient A, why would he have prescribed in particular the Tramadol, Diazepam and alprazolam over such a long period of time and often without repeats, this pattern being inconsistent with the assertion that the scripts were forged by patient A either for personal use or for sale? 5. In respect of the non-admitted particulars of complaint 1 the applicant further submits that the pharmacy and Medicare records clearly reveal that the prescription was provided by the respondent to patient A, and that the explanation of the respondent is at its highest in respect of some scripts that he would not have written so many and so close together, and therefore patient A stole the scripts. The applicant submits that the unsworn evidence of the respondent is an unsatisfactory basis on which to form the conclusion that such scripts were all forgeries, firstly because of the admissions of the respondent as to some prescribing of Diazepam and Tramadol, secondly because the respondent's unsworn evidence is not supported by medical records or other contemporaneous records, thirdly because large-scale forgery with no knowledge of missing scripts seems unlikely, and fourthly because of the failure of the respondent to make himself available for cross-examination. 6. We find ourselves unable to accept the respondent's unsworn responses here, in the absence of oral evidence by him in the proceedings, either by way of evidence in chief or cross-examination. We think that the respondent could have backed up his unsworn allegations by sworn evidence, and that his failure to avail himself of this opportunity by itself casts doubt on the veracity of his unsworn responses upon which he relies. 7. Quite apart from the respondent's failure to give sworn evidence, another basis for rejection of his unsworn responses is that he advances a theory of forgery of prescriptions by patient A which amounts to sheer speculation. We are not unconscious that the evidence of patient A needs to be approached with great caution, particularly having regard to his own failure to attend for cross-examination after his evidence-in-chief was concluded. Nevertheless, even putting aside the evidence of patient A, it is our view that there is insufficient evidence to establish any forgery of scripts by patient A, such as to contradict the proposition that the relevant scripts were in fact written by the respondent. We reach the latter conclusion on the Briginshaw onus in these circumstances. Complaint 3 1. As to complaint 3, the applicant's submissions and our response to them in summary are as follows. The applicant notes that in respect to complaint 3, the respondent asserts in his explanation that most of the doctors would tell him to write the scripts and that they would see him again in a year or so (exhibit A tab 13 page 4). Correctly, the applicant notes that none of these doctors were called to verify this matter, and submits that we should draw a Jones v Dunkel inference concerning the unlikely evidence. No explanation is provided for the absence of these doctors by the respondent, nor is any reason provided while they could not provide documentary evidence attend and give evidence in oral form. In these circumstances we infer that their evidence, if given, would not have positively assisted the respondent's case. 2. Correctly, the applicant notes that the respondent's use of Tramadol following the cessation of Moclobemide is also not borne out by the records, and that the respondent commenced self-prescribing Tramadol in October 2013 (see exhibit A tab 32 page 4.) However we find ourselves unassisted by the applicant's submissions as to when Tramadol and Moclobemide were taken together, because this matter is not crucial to the question of whether the prescribing of these medications was in the circumstances clinically inappropriate and below the standards expected of a competent practitioner. 3. Correctly, the applicant notes that the respondent's record of medications at exhibit A tabs 31 and 32 shows very limited prescribing of medications by other practitioners (there being one occasion of prescription at tab 31 by Dr Shields at page 2, and prescriptions at tab 32 by Dr Northover on 12 occasions after 15 June 2015, and on one occasion by Dr Calder on 9 October 2013 and one by Dr Pincott on 15 January 2010.) 4. Correctly, the applicant submits that there appears no reason for the introduction of the medications that form the subject of the complaint. The applicant correctly notes that the prescriptions written by the respondent were the subject of criticism by Dr Howle (see exhibit A tab 6 pages 11-13). Correctly, the applicant submits that the self-prescribing is prima facie inconsistent with the Codes of Conduct at 9.2.2 in that the respondent did not seek independent objective advice. The respondent also refers in this regard to the Medical Council of New South Wales policy on "Guidelines for Self-treatment and Treating Family Members" (exhibit C). 5. Correctly, the applicant submits that the expert evidence of Dr Howle clearly establishes complaint 3. It submits that the Tribunal is constituted deliberately as an expert body dealing in a practical matter with problems faced in the practice of medicine (see Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; and see also Kalil v Bray (1977) 1 NSWLR 356 per Street CJ at [261]-[262] and Minister for Health v Thomson (1985) 8 FCR 213 at 224). Correctly, the applicant notes that the Tribunal, as an expert committee, may form its own view and it is not bound to accept the evidence of an expert (see Prakash at [91]). However, the applicant submits that given the presence of medical practitioners on the Tribunal, it should be satisfied that the respondent's conduct in self-prescribing was both inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales Policy "Guidelines for Self-treatment and Treating Family Members" and/or contrary to recognised clinical standards. 6. We consider that the applicant's submissions in regard to this complaint are correct because it appears to us to be clearly established, both from the relevant policies and from the expert evidence of Dr Howle, that the relevant prescribing by the respondent was inappropriate and fell below the standard reasonably expected of a competent practitioner in the circumstances in which the respondent found himself. His failure to give oral evidence does not of course add to proof of the case advanced against him by the applicant, but it allows for the inference, which we draw, that his evidence would not have positively assisted the unsworn responses he makes to this complaint, which, as set out above, we reject. Complaint 4 1. In regard to this complaint the applicant simply relies on the same evidence as is set out above. It asserts that, taken together, the findings of unsatisfactory professional conduct which we should make on complaints 1, 2 and 3 rise sufficiently high to amount collectively to professional misconduct, in accordance with complaint 4. We shall deal with this question later. Respondent's submissions on non-admitted complaints 1. Again it is convenient to set these out together with our consideration of them under the same heading. Complaint 1 particulars 5, 6, 8 and 9 1. The respondent admits complaint 1 particulars 1, 2, 3, 4 and 7. Correctly, he submits that these admissions do not lead to propensity reasoning by us in relation to proof of the non-admitted particulars, given that the applicant made no such submission. This may be dealt with shortly. We make no finding based on propensity reasoning as to the non-admitted particulars and it forms no part of our deliberations in relation to the non-admitted particulars set out above, nor does any comparison between the pattern of the non-admitted prescribing as alleged by the applicant against that of the admitted prescribing. 2. The respondent notes that the applicant relies on Schedule A attached to the complaint, it being based on tabs 21-30 of exhibit A which chronicles the dispensing by nine different pharmacies of scripts written in the name of patient A, and in addition on tab 19, the Medicare PBS summary of prescribing to patient A by the respondent. The respondent submits that while business records, as these clearly are, are not unreliable evidence as to proof per se, in a case where the accuracy, authenticity and genesis of the prescriptions are in dispute, the production of the original scripts ought be considered by us to be crucial evidence required before we can be comfortably satisfied that complaint 1 has been proven. 3. The respondent submits that the applicant has not and cannot produce the original scripts in relation to all the scripts dispensed in Schedule A, and that save for the five scripts attached to the 13 October 2015 statement of the respondent (exhibit A tab 13) we are absolutely devoid of the best evidence establishing the following in relation to the prescriptions: 1. Handwriting; 2. Signature to establish its likeness to the respondent's; 3. Strength of dose originally written on the script and whether it has been interfered with/altered; 4. Quantity of tablets originally handwritten on the script and whether it has been interfered with/altered; 5. Dates of prescribing (as compared to dispensing) for some but not all itemised scripts in Schedule A; 6. Any other notations regarding use noted on the script. 1. The respondent submits that the absence of the original scripts must additionally prove fatal to the applicant's case in relation to the disputed particulars of complaint 1 as a result of; 1. The applicant's inability to positively rebuff by way of fingerprint expert evidence or otherwise the respondent's belief that the disputed scripts are the subject of fraudulent conduct by patient A in light of previous charges and allegations of fraud against patient A. The respondent refers here to exhibit A tab 13, the respondent's third statement of 13 October 2015 page 2 paras 3-5 and exhibit 2 being COPS reports relating to numerous offences, some of dishonesty, committed by patient A. 2. The fact that patient A's account does little or nothing to corroborate the conduct as expressly particularised in Schedule A in relation to date, dose and quantity of tablets given. Patient A's evidence, both written and oral is so vague and lacking in particulars regarding the respondent's prescribing of Tramadol and Xanax that it could not support a finding that the prescribing occurred on 50, 33 or 22 occasions respectably as expressly particularised in particulars 5, 6 and 9. 3. The fact is that proof of the number of occasions the medication was described is a critical component requiring proof to the requisite standard. The respondent accepts that he has made what could be said to be a partial admission to prescribing benzodiazepines (unspecified) on occasion in his statement at exhibit A page 3 para 2, but he submits that this general statement does not go to the specifics of the particularised conduct in particulars 5 and 9 to supply the proof required. Further, the respondent submits that propensity reasoning ought not be permitted to establish proof for reasons outlined earlier. Shortly, we have not applied propensity reasoning in any way in our findings. 4. The respondent submits that patient A is an unreliable witness lacking in credit for reasons outlined later. We shall deal later with the respondent's submissions in that regard. 1. Put simply, these submissions, though not without considerable weight, would have been powerful had the respondent given evidence rather than simply taking the stance of remaining silent by not giving sworn oral evidence and instead effectively putting the applicant to proof (apart from his unsworn written responses to the applicant's enquiries set out above). True it is that his failure to give sworn oral evidence does not assist the applicant in positively proving its case. However where, in accordance with the applicant's submissions, a Jones v Dunkel inference is drawn from the respondent's failure to give evidence, to the effect that the respondent's evidence would not have positively assisted his case, it is also the case that in accordance with the applicant's submissions, we may more readily accept evidence tendered by the applicant in proof of its case in the absence of sworn evidence (as distinct from unsworn responses to the applicant's enquiries) from the respondent in the proceedings. 2. Prima facie, as the applicant submits, the documentary evidence upon which it relies supports the non-admitted complaints, including those in complaint 1. True it is, however, that the original scripts would have been the best evidence to establish the non-admitted complaints, having regard to what they would have established concerning such matters as handwriting, signature, strength of dose, quantity of tablets, dates of prescribing and any other notations regarding use on the script. Our inability to have recourse to such matters might have been crucial in our preferring the sworn evidence of the respondent denying the non-admitted particulars to the documentary evidence relied on by the applicant in support of them, had the respondent chosen to give sworn evidence. In the absence of such evidence, we see no reason to accept the unsworn denials by the respondent in his written responses to the applicant of prescriptions in the non-admitted particulars in preference to the documentary evidence relied upon by the applicant, which evidence we consider we may more readily accept in the unexplained absence of evidence from the respondent as set out above. We shall deal later with the respondent's submissions as to the unreliability of patient A as a witness. Forgery 1. The respondent argues that his belief that the disputed scripts are arguably forgeries, and therefore fraudulent conduct by patient A, is fortified by two entries in the police reports found in exhibit 2. He notes that page 23/30 of the entry dated 24th of 2010 particularises an "incident detail" regarding actual fraud in relation to patient A being complicit in assisting another person, arguably "Johnno", to access the credit cards of yet another person. The respondent notes that in his oral evidence patient A admitted that he had a friend "Johnno" who was an ice user and whom the respondent prohibited from entry into his home. The respondent notes that the complete circumstances set out in this entry could not be put to patient A because of his non-attendance on the second day of hearing. The respondent submits that this entry arguably relates to patient A making attempts to defraud the respondent. He notes that exhibit 1 tab 3(i) is a letter from the respondent to patient A of September 2011 referring to an "identity theft/fraud issue". 2. Again put simply, it is our view that these submissions would have gained immeasurably greater weight had the respondent chosen to give sworn evidence alleging forgery of prescriptions by patient A, rather than simply relying on his unsworn responses to the applicant's enquiries making this allegation. They may have proven crucial to our preference for the sworn evidence of the respondent as to the non-admitted complaints, had he given it, over the evidence of patient A in documentary and oral form, given his failure to attend for cross-examination on the second day. True it is that patient A's evidence must be approached by us with considerable caution having regard to his failure to attend for cross-examination on the second day of hearing. The same approach is undoubtedly required by the COPS entries upon which the respondent relies. Clearly patient A is not a person of good character. However all of this does not lead directly to a conclusion that the evidence of patient A, documentary and otherwise, in support of the non-admitted particulars ought not be accepted where it is uncontradicted by sworn evidence from the respondent. Again, we consider that we may more readily accept the evidence of patient A in circumstances where a Jones v Dunkel inference has been drawn against the respondent in accordance with the applicant's submissions, and where therefore, again in accord with the applicant's submissions, we may more readily accept evidence tendered in support of the applicant's case. 3. Our response is the same to the respondent's submission that there is further evidence of patient A being questioned and in fact charged with actual fraud found on page 17-18/30 of the entry dated 21 June 2010 in the COPS reports. We take the respondent's point that this entry establishes a considerable number of apparently fraudulent activities by patient A. We do not agree with the respondent that the falsifying of scripts by accessing the respondent's prescription pad and falsifying signatures and handwriting is conduct of a striking similarity to that demonstrated in the COPS reports. Searching through garbage, retrieving bank statements, attempting to deposit a cheque deemed fraudulent and not accepted and successfully having funds transferred into patient A's account, as demonstrated in the COPS reports, does not bear a "striking similarity" to alleged forgery of prescriptions in our view. Be that as it may, and even assuming such a "striking similarity", it is not our view that we should accept the respondent's unsworn allegations of forgery of prescriptions in response to the applicant's enquiries in circumstances where in unexplained circumstances he failed to give sworn evidence to back them up. 4. Again put briefly, our response is the same to the respondent's submission that there is evidence in the COPS reports of other fraudulent activity by patient A in relation to a "goods in custody" offence, and of use of the drug Xanax by him which was possibly obtained from another source, and to the respondent's submission that patient A gave evidence that he in fact was convicted on three occasions. We note the respondent's submission that based on the evidence just summarised, by itself, we cannot be satisfied that the disputed prescribing in Schedule A has occurred. Put briefly, this evidence of undoubtedly dishonest conduct by patient A may well have been a powerful indication that his evidence in oral and written form ought not to be preferred to the sworn evidence of the respondent denying the disputed prescribing, had he given it. As it is, he did not, and for reasons already set out, we consider that in those circumstances we may more readily accept the evidence of patient A in support of the disputed particulars, and we do so. Patient A's reliability and credibility 1. The respondent notes that patient A's evidence on the issue of prescribing is found in three documents, the first of which is the AHPRA complaint at tab 2 of exhibit A, in particular question 21 where Kristy Arnold, a health worker, notes that patient A alleges prescription of benzodiazepines between 2004 and 2013, and further notes that she has concerns about the veracity of this complaint, given the patient's history as an inconsistent historian. The respondent notes that at this time patient A also reported unprotected sex with the respondent, which was vehemently denied by him in the witness box, saying that he never told Ms Arnold this at all. It is certainly the case that as the respondent submits, credit issues squarely arise from this inconsistency. Had the respondent give sworn evidence denying the disputed prescribing and disputing the evidence of patient A in oral and written form, these inconsistencies may well have been a weighty consideration in favour of preference of the sworn evidence of the respondent over that of patient A. However, given that the respondent did not give evidence, we again consider that we may more readily accept the evidence of patient A in oral and written form as to the disputed prescribing, and we do so. 2. Our response is the same to the many disturbing matters to which the respondent draws attention in the submissions in relation to the five page written statement by patient A at exhibit A tab 3. True it is that as submitted by the respondent, a Jones v Dunkel inference ought be drawn from patient A's failure to attend for cross-examination on the statement on the second day of the hearing, to the effect that any answers he might have given in cross-examination would not have assisted acceptance of his evidence, even acknowledging upset as a likely major reason for his non-attendance on the second day. This submission may well have carried considerable weight had the respondent given sworn evidence contradicting patient A's statement, but he did not, in unexplained circumstances. His failure to do so means that we may more readily accept the evidence of patient A in oral and written form, including his five page statement just referred to, despite the disturbing matters to which the respondent draws attention. 3. Our response is again the same to the respondent's submissions concerning the Commission statement of patient A at tab 4 of exhibit A. True it is that given his failure to attend for further questions under cross-examination, we do not know what, if any, pharmacy records patient A was shown before writing his statement, noting the remarkable recall he now displays regarding which chemists dispensed which scripts. True it is also that this recall is particularly notable where the patient's memory is less than accurate regarding more remarkable events, namely being an involuntary patient at St Vincent's Hospital in late 2006, given that exhibit 3, the records of St Vincent's Hospital place the admission a year later in December 2007. The respondent also draws attention to the patient's recollection that he offered services as a masseuse when he now admits in oral evidence that he advertised as an escort in a local gay newspaper. The respondent submits that given the fact that the statement of the patient was not fully tested, given his failure to attend for cross-examination on the second day, little or no weight ought be attached to it. 4. Again these considerations may well have been powerful indications that we should prefer the sworn evidence of the respondent to that of patient A, had he given it. He did not, and we may more readily accept the evidence of patient A despite the disturbing matters to which the respondent refers, and we do so. General credit issues regarding patient A 1. Correctly, the respondent does not submit that a mentally unwell individual or a person labouring under a drug addiction is an unreliable witness per se, but it does submit that in this particular case these two factors play a crucial role in any determination as to the reliability and/or credibility of patient A. He submits that the COPS reports disclose a history of dishonesty, and in particular fraud, arguably relating specifically to the respondent, and stealing and self-reports of addiction, aggression and antisocial behaviour. He submits that the St Vincent's hospital records may well explain in part patient A's demeanour in the witness box by providing material confirming diagnoses of autism spectrum disorder and narcissistic behaviour with impaired insight, noting the witness's tendency in the witness box to blame others and his confirmation of his drug use and episodes of drug induced psychosis. 2. In response to this submission we point out that there is no expert evidence before us as to the present mental state of patient A, and we consider that it would be unwise indeed for us to make a positive finding as to his present psychiatric diagnosis. True it is that in the witness box he displayed a tendency to blame others, and to give answers upon which he later backtracked, and generally he was an unimpressive witness. To proceed from such a view to reject his evidence altogether as to the disputed complaints where the respondent failed altogether to give sworn evidence disputing what patient A said in the witness box, albeit that he failed to attend for cross-examination on the second day, is in our view, a bridge too far. 3. In forming this view we have noted the respondent's submission that the St Vincent's hospital records to raise concern as to whether patient A's words can be trusted. We note that in the records his mother describes him as "cunning", and that during an admission on 26 September 2008 he convinced hospital staff to allow him unescorted leave and then absconded. 4. We have also noted the respondent's submission that his own reliability and candidness are also evident when he states in his first letter to the applicant that his relationship with patient A ended in October 2013 when patient A demanded another script and would not leave until the respondent wrote it, causing the respondent to call the police. The respondent notes that the COPS entries, except in one minor respect, corroborate the respondent. 5. The problem we have with this submission is again the respondent's failure to give sworn evidence, as distinct from relying on his unsworn responses to the applicant's enquiries. True it is that the respondent may well be correct as to the circumstances of his ending his relationship with patient A as just set out. This does not mean that his unsworn responses to the applicant's enquiries should be preferred to the evidence in written form and also in sworn oral form supporting the disputed particulars of the complaints. We are not prepared to take this step, for reasons already explained. 6. We note also the respondent's submission that St Vincent's hospital records tendered by him demonstrate a single occasion when patient A disclosed Valium or Xanax use, despite the patient's complaint that the respondent is responsible for a debilitating addiction to prescription medications during their relationship, and that given the single entry abovementioned, it is questionable whether the account given by patient A as to his dependence on Valium, Xanax or Tramal as a result of the respondent's alleged prescribing is true. 7. Once again, our response to this submission is that had the respondent chosen to give oral evidence, these considerations may well have been a powerful indication against acceptance of the evidence of patient A over that of the respondent. Since the respondent did not take the witness box to contradict patient A in unexplained circumstances, we think we may more readily accept the evidence of patient A and we do so. 8. The same shortly applies to the respondent's submission that Exhibit 1 tab 3(a)-(q) paints a very clear picture of patient A constantly and persistently approaching the respondent for money. We have carefully noted the instances where this is undoubtedly done by the patient or another on his behalf. The respondent submits that patient A therefore was and is a man driven by obtaining money, presumably to feed an untreated addiction, and that this evidence is strong support for finding by us, or at the very least a real concern, that the disputed prescriptions were forgeries. 9. The person who could have told us on oath that the prescriptions were forgeries, or at the very least, not written by him, is the respondent. Instead he did not take the witness box and relies, against the sworn evidence of patient A, albeit untested in cross-examination, on his unsworn to the applicant's investigations. In face of the inference we draw that the sworn evidence of the respondent would not have materially assisted his case in the areas to which it might have related, including potential forgery of prescriptions for patient A, we do not think we should accept the respondent's unsworn suggestions of forgery of prescriptions and we do not do so. 10. In these circumstances our conclusion, that the applicant has discharged the onus of proof as to the contested matters in complaints one, namely particulars 5, 6, 8 and 9 on the Briginshaw standard, remains. Complaint 3 particulars 4, 6(b), 10(a) and 12 Particular 4 1. The respondent notes that this has been amended to allege that the prescribing of Moclobemide was contrary to recognised clinical standards in that it was prescribed in an inappropriate combination with Tramal. The respondent says the applicant presumably relies on the expert Dr Howle and the literature he has provided attached to his report, exhibit A tab 6. However, the respondent points out, Dr Howle in oral evidence agreed that no co-administration signifies the drugs being taken at the same time. He points out that Schedule B discloses that Moclobemide was dispensed on 25 September 2013 with 60 tablets and then not again until 9 April 2014, seven months later. He submits that the available inference, arguably the overwhelming inference, is that Moclobemide was not be used daily from the dispensing date of 25 September, noting that Tramadol was dispensed on 4 October 2013, namely nine days after the Moclobemide. Therefore, the respondent submits that the dispensing records in Schedule B do not support a finding that Moclobemide and Tramadol were being co-administered, noting that Dr Howle did not give any further evidence to support such a finding. 2. Again we observe that the person who could have explained the dispensing records in sworn evidence was the respondent. We take the respondent's submission to be that even absent the respondent's failure to give evidence, the applicant's case on this particular does not rise sufficiently high to prove it on the appropriate standard. We disagree. The "overwhelming inference" which the respondent would have us draw overlooks, with respect, the failure of the very person who could have explained the dispensing records to give sworn evidence. It is to be inferred that his sworn evidence would not have positively assisted his case on this particular. In these circumstances our conclusion that this particular has been proved on the appropriate standard remains undisturbed. Particular 6 1. The respondent does not admit particular 6(b), that the prescribing of Zopiclone was contrary to recognised clinical standards in that it was done in inappropriate combination with Zolpidem. 2. The respondent says the applicant presumably relies again on the evidence of Dr Howle and the literature he has provided attached to this report, exhibit A tab 6 pp 31-33, 43-53. The respondent says the literature does not state that the two drugs are contraindicated, and that Dr Howle in oral evidence accepted that proposition and did not give any further evidence as to why that combination is inappropriate. The respondent submits that this particular must fail for lack of evidence, and that Schedule B is consistent with administration which alternates between the two rather than co-administration. 3. Nevertheless we point out that Dr Howle never expressly withdrew from his opinion that co-administration of the two drugs is inappropriate. The respondent could have, but did not, call any expert evidence to contradict Dr Howle's opinion. In these circumstances we are of the view that Dr Howle's evidence supports this particular, which has been proven on the appropriate standard. Particular 10(a) 1. The respondent does not admit that the prescribing took place without an appropriate therapeutic basis, relying on his physical condition as outlined in his third correspondence with the applicant dated 12 October 2015, namely his patellofemoral arthritis in both knees and the degeneration in his lumbar spine. The respondent says Dr Howle did not accept in oral evidence that Tramadol was recommended first-line treatment for this combined physical condition, and that in his written report his concern appears to lie in the area of self-prescribing without independent clinical review and no documentation of the condition. The respondent submits that evidence that Tramadol is not first-line treatment does not automatically establish to the requisite standard that the prescribing was without an appropriate therapeutic purpose, and that Tramadol is an analgesic and nothing in the literature supplied and relied upon by Dr Howle argues against its use for the presenting conditions. The respondent says that the evidence of Dr Howle may well establish that the prescribing was below standards, but is sufficient to establish that it was significantly below such standards. 2. We disagree. The evidence of Dr Howle was to the effect that the prescribing here was significantly below that expected of a competent practitioner in the position of the respondent. The respondent never clearly secured a withdrawal by Dr Howle from that position, nor did he call any expert evidence whatever, and in particular any expert evidence to contradict Dr Howle's opinion in this respect, nor did he himself give sworn evidence to disentangle the question of precisely when and what extent the prescribing occurred, and what he thought its appropriate therapeutic purpose was. In these circumstances we are of the view that this particular has been proven on the appropriate standard. Particular 12 1. The respondent does not admit particular 12. He says that of note is that he only self-prescribed Modafinil on a single location, namely 11 June 2014: Schedule B page 9. He says that this fact alone would argue against a finding that it was conduct which fell significantly below the standard expected of a competent practitioner in the position of the respondent. The respondent says the literature does not support a finding that such prescribing is contraindicated with Zolpidem and Zopiclone: tab 6 pages 34-42. He says that Dr Howle agreed in oral evidence that co-administration requires consumption at the same time to achieve the drug's therapeutic benefit, and that administering Zolpidem/zolpidone at night and Modafinil in the morning is not co-administration, noting that the allegation of prescribing "in combination" is presumably to be read as meaning "co-administration". The respondent submits as to the alleged prescription "in combination" cannot be established, the subsequent allegations of it being contrary to clinical standards could likewise not be proved to the requisite standard. 2. Again we disagree. The person who could have established by sworn evidence of the matters that were put to Dr Howle in cross-examination as to the presumed circumstances of the prescribing was the respondent, and he did not choose to give sworn evidence. In these circumstances we find that this particular has been established on the requisite standard. Findings 1. The applicant submits that we can be reasonably satisfied that the particulars of the complaints have been established, having regard to the evidence and admissions already set out. It submits that the Tribunal is constituted deliberately as an expert body dealing in a practical manner with problems faced in the practice of medicine (see Basten JA in Prakash (supra)) at [91]). Again, reliant on the same authorities, the applicant correctly submits that we as an expert committee may form our own view and are not bound to accept the evidence of the experts. We accept this submission, and are of the view that the disputed particulars of the complaints have been established to the requisite standard, for reasons already discussed. The applicant's submissions on unsatisfactory professional conduct 1. We note at this point that the respondent does not dispute unsatisfactory professional conduct. What he disputes is the extent of it, and whether, taken collectively, it amounts to professional misconduct. With this in mind we shall summarise the parties' submissions under this heading with a little more brevity than might otherwise have been the case. 2. The applicant notes that complaints 1, 2 and 3 allege unsatisfactory professional conduct within section 139B of the National Law. The applicant correctly notes that the conduct alleged in the various particulars in complaints 1, 2 and 3 can be accumulated and considered in their totality to reach a finding of professional misconduct in relation to complaint 4, referring in this regard to Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 at [39]. As to what constitutes "professional misconduct" the applicant refers to what was said by Kirby P in Pillai v Messiter [No 2} (1989)16 NSWLR 197 where his Honour held that it requires "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner". The respondent notes that his Honour further held that "mere negligence or incompetence" do not amount to misconduct, and that the purpose of a finding of professional misconduct "is not punishment of the practitioner as such but protection of the public from serious the incompetent people who are ignorant of basic rules or indifferent as to rudimentary professional requirements". 3. The applicant correctly notes that the breach by the respondent of the regulations concerning record-keeping as set out in complaint 2 is deemed to be unsatisfactory professional conduct by section 139 (1) (b) of the National Law. 4. The applicant notes that complaints 1 and 3 alleged that the respondent engaged in conduct demonstrating knowledge, skill or judgement possessed, or care exercised, by him in the practice of medicine which was significantly below the standard reasonably expected of a practitioner of the equivalent level of training or experience and/or that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 5. The applicant correctly submits that determining whether a practitioner is guilty of unsatisfactory professional misconduct, as considered in section 139B (1) (a) of the National Law involves an objective assessment of the practitioner's conduct against the standards of conduct expected of an equivalent practitioner, citing authority. 6. The applicant submits that when assessing what constitutes unsatisfactory professional misconduct, reference may be made to the views of professional brethren of good repute and competency, citing authority, and referring to the standard set out both in the guidelines/policies at exhibit A tabs 34 and 35 of the Medical Council of New South Wales Policy on Self-treatment and Treating Family Members, and the reports of Dr Howle at exhibit A tabs 6 and 8. The applicant submits that the respondent's conduct appears to substantially deviate from any reasonable standards. Both the policy and the evidence of Dr Howle support this conclusion, and unsatisfactory professional conduct is in any event admitted on the admitted particulars of the complaint, as we have said. 7. The applicant notes that complaints 1 and 3 also allege that the respondent engaged in improper and unethical behaviour as a basis for unsatisfactory professional conduct as referred to in section 139B (1) (l) of the National Law. Correctly, the applicant observes that these words are undefined, but that they bear no special or technical meaning but are to be understood in their ordinary meaning, citing authority. 8. We do not understand the respondent to submit that he was not guilty of improper and unethical behaviour as a basis for unsatisfactory professional conduct. His submissions appear confined to the proposition that the non-admitted particulars are not proven, and that the admitted particulars, taken together, do not rise as high as to constitute professional misconduct. In these circumstances, and noting that we have found that the non-admitted particulars have been proven on the appropriate standard, we are comfortably satisfied that the respondent engaged in improper and unethical behaviour as a basis for unsatisfactory professional conduct. 9. The applicant submits that the particulars of complaints 1 and 3, which we interpolate have in our view been proven in their entirety (including the non-admitted particulars) on the requisite standard, cannot be satisfactorily explained as an error of judgement rather than a defect of character, noting that there are numerous acts over a number of years, and that such defect amounts to a total disregard by the respondent of his professional responsibilities under the Code and National Law. 10. We agree. Generally, we consider that the conduct of the respondent in inappropriate prescribing, as demonstrated by the opinion of Dr Howle, for a person with whom he was engaged in a sexual relationship over a number of years (regardless of course of gender, which is irrelevant) amounts to a defect of character demonstrating a total disregard of the respondent's professional responsibilities. 11. The applicant notes that the respondent has also admitted, firstly that in respect of the admitted particulars of complaint 1 his conduct amounts to unsatisfactory professional conduct, that in respect of complaint 2 his conduct amounts to unsatisfactory professional conduct. Professional misconduct 1. The applicant submits that given the absence of any comprehensive exploration of the precise boundary between unsatisfactory professional conduct and professional misconduct, the concept of "professional misconduct" should be given a purposive interpretation. Correctly, the respondent notes that professional misconduct refers to that conduct which is sufficiently serious to justify suspension or cancellation of the practitioner's registration, noting that the determination of whether conduct amounts to professional misconduct has at its starting point an objective assessment of the relevant conduct against the standard of conduct reasonably expected of an equivalent practitioner, noting also that the gravity of professional misconduct is not to be measured by reference to the worst-case but to the extent to which the conduct departs from "proper" or "reasonably expected" standards (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638]). 2. The applicant submits that both individually (in respect to complaints 1 and 3) and cumulatively the particulars of complaints 1, 2 and 3 demonstrate that the respondent has engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of his registration. We agree, for the reasons the applicant gives. It notes that the first complaint concerns the provision of drugs to patient A, noting that in the agreed statement of facts, exhibit B, the patient is described as a particularly vulnerable person, this being reinforced by his hospital records, exhibit 3 and the COPS records, exhibit 2. The applicant also notes here the cross-examination of Dr Howle where he agreed as to patient A that as to the prescription of alprazolam set out at page 9 of his initial report, the conduct of the patient could well fit the "classic doctor shopper profile". 3. Correctly in our view, the applicant submits firstly that the respondent failed to recognise the vulnerability of the patient and continued to feed his addictions, and secondly that such medications were prescribed without consultation with the patient's treating doctors, such that provision of the medication to the patient was undertaken without knowledge of his prescriptions otherwise. 4. It is also true, as the respondent submits, that the first complaint also concerns repeated breaches of professional boundaries with patient A, which the applicant submits is a breach which in all of the circumstances should be of considerable concern to us, and one which, even in isolation, warrants a finding of professional misconduct. It is tempting to uphold this submission, but we prefer to base our finding of professional misconduct on the whole of the proven particulars of complaint in complaints 1, 2 and 3, taken cumulatively, which we think are together sufficient to justify cancellation of the respondent's registration and to constitute professional misconduct. We make this finding on the Briginshaw standard. 5. It is nevertheless true, as the respondent submits, that regardless of whether the respondent engaged in a close personal or a sexual relationship, the ethical considerations concerning intimate relationships, both platonic and sexual, between practitioners and patients produce a rupture of a fundamental tenet of the medical profession, flowing largely from concerns about the vulnerability of the patient in relation to the practitioner. Authority is cited, but this seems to us to be self-evidently true, because as the applicant submits, the power imbalance produced between patient and doctor raises the possibility of exploitation or harm. 6. Correctly, the respondent submits that based on these principles, it is not necessary to demonstrate that harm flowed to the patient by virtue of a relationship with their health professional, noting however that the evidence in this case clearly demonstrates that it did. 7. The applicant submits that given the overriding concern for protection of patients, the mere fact of the damaging relationship between the respondent and patient A, in conjunction with the clear contravention of the code of conduct for doctors, clearly necessitates a finding of professional misconduct. Again, we prefer to base our finding of professional misconduct on all of the proven particulars of complaint in complaints 1, 2 and 3, taken cumulatively. 8. It is nevertheless true that the first complaint concerns in part the inappropriate administration of drugs to a patient, and that prescription and handling of drugs of addiction recklessly and contrary to law constitutes professional misconduct, as the applicant submits, citing Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep). 9. It is also the case, as the applicant submits, that the respondent's repeated prescribing to patient A who had a propensity to drug dependency indicates a concerning lack of insight or interest in the welfare of the patient, coupled with the respondent's decision to prescribe notwithstanding that he was not the patient's responsible treating doctor, and without liaising with the treating doctor, or knowing what other medications had been prescribed to the patient, and without providing any medical records or basis for his decisions to prescribe, and that these matters added to the risks to patient A and to the departure from expected standards of care. 10. It is the applicant's submission that even if we did not find the non-admitted particulars established, the respondent has admitted some prescribing of Diazepam to patient A (the applicant refers in this respect to Dr Howle's expert evidence, ex A tab 10 page 2 and tab 13 page 3), and also Tramadol, and that even some of the admitted prescribing should also be of concern where the respondent was not the patient's treating doctor and/or did not inform this doctor or doctors of his prescriptions, especially concerning the prescriptions of Risperidone and Duramine (which should not be prescribed to persons with psychiatric illness who also misuse drugs) lithium carbonate and escitalopram oxalate. For these reasons, the applicant submits that even if we were only to find the admitted particulars of complaint 1 established, we should also find that the respondent's conduct amounts to professional misconduct. The applicant also refers in this regard to the oral evidence of Dr Howle the effect that his view that the conduct in question fell well below that expected of a competent practitioner in the position of the respondent still prevailed assuming only the admitted particulars of complaint 1, a conclusion reinforced where the doctor and patient, as well is being friends, were lovers. To even stronger effect were Dr Howle's answers to questions asked by Dr Diamond concerning the circumstances in which Sibutramine and Risperidone were prescribed to the patient. 11. The applicant correctly notes that the Risperidone prescription of 27 June 2009 had two repeats, in circumstances where the medical records of the respondent for the patient were non-existent, posing a further threat to the continuity of care provided by the respondent. 12. The applicant also correctly submits that complaint 3 also demonstrated this regard of the respondent's professional obligations, because the self-prescribing demonstrates the inappropriate administration of drugs and shows that the respondent failed to properly handle and prescribed drugs and has failed to live up to this very great responsibility in a way that is reckless. 13. The applicant submits that the conduct of the respondent in complaint 1, 2 and 3, both separately (in respect of complaints 1 and 3) and together are serious enough to justify a finding of professional misconduct, and a finding that the respondent's conduct is a serious breach of the standards the public of right to expect of a practitioner. For the reasons already analysed from the applicant submissions, we agree. Respondent's submissions as to proof of unsatisfactory professional conduct and professional misconduct 1. As noted the respondent admits that the conduct admitted in complaint 1 amounts to unsatisfactory professional conduct, and that the admitted conduct in complaint 2 amounts to unsatisfactory professional misconduct. Importantly and realistically, the respondent concedes that if the disputed conduct in complaint 1 is proven, the conduct amounts to professional misconduct. However the respondent does not concede that proof of the matters disputed in complaint 3 necessarily amounts to professional misconduct, the disputed particulars of the complaint being, the respondent says, largely a repetition of the already admitted particulars, save for an additional allegation of combination. We prefer not to base our finding of professional misconduct on the proven particulars on any particular complaint, although we note the respondent's concession, correctly made in our view, that if we found all of the particulars on complaint 1, including the disputed particulars, proven, a finding of professional misconduct should follow. As we have indeed found all of the particulars of complaint 1, including the disputed particulars, proven, it follows that proof of this complaint alone would, on the respondent's concession, have provided a sufficient basis for a finding of professional misconduct. 2. The respondent contends that if only the admitted conduct in complaint 1 is proved, it leads to a finding that on ten separate occasions over a period of five years, the respondent prescribed medication to patient A. The respondent contends that it is the context in which the prescribing occurs which must be closely assessed to ascertain whether in fact this amounts to professional misconduct. The respondent contends that professional misconduct does permit an assessment as to the respondent's moral culpability in determining gravity. The respondent contends that his "evidence" (referring presumably to his unsworn responses to the applicant's enquiries) as to the terms of his relationship with patient A might be accepted over the patient's own evidence, given that the respondent has been candid and consistent from the outset. 3. We have already indicated our difficulties with this submission that the unsworn responses of the respondent to the applicant's enquiries ought be preferred over the sworn evidence of the patient, albeit untested in cross-examination, in circumstances where the respondent has failed to explain his failure to give evidence in the witness box, and where it may therefore be inferred that his sworn evidence would not have materially assisted his case in the respects to which it might related. In accordance with legal principle, as we have said, the evidence tendered in the applicant's case, including the oral evidence of patient A, albeit untested in cross-examination, may more readily be accepted in the unexplained absence of sworn evidence from the respondent, and we take that step. 4. We agree with the respondent that on the evidence, patient A was on any view difficult to deal with from the respondent's point of view. The respondent accepts that his vulnerability by virtue of his mental illness and addiction are factors arguably operating against the respondent. The respondent submits that they also arguably support a finding that the situation in which the respondent found himself had "many shades of grey", which can and did result in substandard conduct, given the difficulties arising in navigating complex individuals and relationships. 5. We disagree. Not without some sympathy for the respondent, we are of the view that the vulnerabilities of patient A should have been a "red light" to a medically trained person such as the respondent, indicating that any personal, or particularly sexual, relationship with a patient ought be strictly quarantined from any doctor/patient relationship, which should be undertaken by another practitioner altogether. This did not occur. 6. We disagree with the respondent's submission that taking into account the overall context of the respondent's behaviour and moral culpability, we should not be satisfied that professional misconduct has been proven to the requisite standard, for reasons already expressed. We disagree also with the respondent's submission that the cumulative effect of all three complaints, assuming all of the particulars are proven or alternatively that only the admitted particulars are proven, the aggregate effect is not professional misconduct. Conclusion 1. It is appropriate, as the applicant submits, that on the evidence, together with the admissions made by the respondent, that we should find, as the applicant submits, and we do find: 1. that each particular of each complaint is made out on the evidence; 2. that the respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law, and 3. that the respondent is guilty of professional misconduct within the meaning of section 139E of the National Law and that he has engaged in more than one instance of unsatisfactory professional conduct such that, when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Protective Orders 1. The applicant correctly notes that given the above findings, we will need to consider as part of our discretion what, if any, protective orders are made under sections 149, 149A, 149B and 149C of the National Law. It notes that our disciplinary powers as set out in section 149, which include a range of powers including cautioning, reprimanding or imposing conditions on the registration of a practitioner as well as other matters. However, it notes that where we make a positive finding of professional misconduct, we may under section 149C(1) suspend the practitioner's registration for a specified period or cancel it entirely. It notes that if such an order is made, it may provide that an application for review may not be made until after a specified time. Further, it notes that where the practitioner is no longer registered, as is the case here, we may decide that if the person were still registered, we would have suspended or cancelled the person's registration, and if we would have cancelled the practitioner's registration, we may decide that the person is disqualified from being registered in the health profession for a specified period until specified conditions have been complied with. Much further material is set out as to the orders which we may make, and as to authority concerning their exercise, but shortly, it is our view that it is amply established that the orders the applicant seeks should be made. The departures from the standard of conduct to be expected from a competent practitioner in the position of, and with the experience of the respondent are very grave in our view, and justify the orders the applicant seeks. 2. We accept the applicant's submissions that our jurisdiction is not punitive but protective of both public health and safety and the profession itself, that there may be a need to protect the public against further misconduct by the practitioner, that there is a need for general deterrence, that the high professional standards of the profession must be reinforced and transgressions must be denounced, and that public confidence in the profession must be maintained. We accept the applicant's submission that the essential question of the practitioner's fitness to practice must have regard to steps he has taken since that conduct occurred, and we note its concession that steps have been taken by the practitioner to mitigate future harm, but that he has only begun this process and much more needs to be done. 3. As to costs, the applicant notes the power of the Tribunal under Schedule 5D clause 13 of the National Law to require the applicant, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another, where so decided by the Tribunal. It notes that it is commonly held that costs will follow the cause, citing authority. Authority is also cited for the proposition that it is for the losing party to establish any departure from the usual rule, which will ordinarily occur only when there has been some sort of disentitling conduct on the part of the successful party. We do not think that there is in this case any reason to depart from the usual rule. Dr Kingston could have admitted the disputed particulars of the complaints but did not. It is particularly significant in our view that he chose not to give evidence but yet contested the veracity of the evidence of patient A. We think he should pay the applicant's costs of the application and we shall so order. Respondent's submissions as to protective orders 1. The respondent submissions in this regard are short. The respondent notes the principles in Litchfield (supra) and other authorities, agreeing with the applicant's submissions that the protection of the public is the paramount consideration, together with the maintenance of the high standards of the medical profession, deterrence not only of the particular practitioner but of others, as a reminder to the profession, and emphasis on the unacceptability of the conduct involved. 2. The respondent submits that the anticipated order foreshadowed by the applicant at the outset of the proceedings that two years elapse before the practitioner could apply for reregistration is excessive, bordering on punitive, and not required to meet the protective nature of the jurisdiction. He submits correctly that a finding of professional misconduct does not automatically result in a finding of a period of suspension or cancellation. In this regard, he submits the that the light of his having removed his name from the register, the protective aspects of general deterrence and the profession's reputation are of primary importance, so that a period of less than 12 months before renewal could well and truly meet the principles behind protective orders. 3. We disagree. The departures from the standard of conduct to be expected of a competent practitioner in the position of the respondent, having regard to the fact that all of the complaints are proven and that we have made in consequence of a finding of professional misconduct, are so grave that it is our view that an order should be made to the effect that the respondent may not apply for re-registration for a period of three years from today's date, as sought by the applicant. Only by the making of such an order and consequential orders as sought by the applicant will our protective functions be properly exercised and their premises met. 4. As to costs, the respondent submits that if only the admitted conduct in complaints 1 and 3 is proved, each party should bear its own costs, and that if the disputed matters in complaint 3 but not complaint 1 are proved, the respondent should only be required to bear 50% of the applicant's costs, as the heart of the complaint lies, in the respondent's submission, in complaint 1. 5. As it is, we have found that all of the particulars of each of the complaints is proved. As we have said, there appears no proper basis for departure from the usual rule that cost should follow the event, that is, that the respondent should be in the applicant's costs is agreed assessed, and we shall so order. Orders 1. Our orders are as follows: 1. Pursuant to sections 149C (4)(a) of the National Law, the Tribunal decides that if Dr Kingston were still registered as a medical practitioner it would have cancelled his registration on the register of health practitioners, in relation to medical practitioners, kept by the Medical Board of Australia and maintained by the Australian Health Practitioner Regulation Agency. 2. Pursuant to section 149C(4)(b) of the National Law Dr Kingston is disqualified from being registered as a medical practitioner in the medical profession for a period of three years from the date of these orders. 3. Pursuant to section 149C(4)(b) of the National Law the Tribunal requires the Medical Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Dr Kingston's registration as a medical practitioner. 4. The Tribunal orders that three years must elapse from the date of these orders before Dr Kingston may make an application for a review under section 163A of the National Law to this Tribunal. 5. The Tribunal orders that Dr Kingston pay the applicants costs of these proceedings as agreed or assessed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 12 March 2018 - 12 March 2018 - Date of Decision amended to actual publication date. 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: 12 March 2018