Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Joselito De Leon [2019] NSWCATOD 43 Hearing dates: 14,15 November 2018 Date of orders: 29 March 2019 Decision date: 29 March 2019 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ Principal Member Dr G Albert Senior Member Dr N Kowalenko Senior Member Ms J Barker General Member Decision: 1. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. The Respondent's Registration as a Medical Respondent is cancelled. 3. An application for review of the cancellation order (for a Reinstatement Order) may not be made until after 14 November 2022. 4. The Respondent must pay the Applicant a sum of $16,000 for its costs of or incidental to the proceedings. 5. The Registrar is requested to notify the Medical Council of New South Wales and the Australian Health Practitioner Regulation Authority of these orders as soon as practicable. Catchwords: Medical profession, disciplinary proceedings, breaching professional boundaries, breaching prescribing requirements, inadequate records, false evidence to Medical Council enquiry, prescribing without authority. Professional Misconduct. Legislation Cited: Health Practitioner Regulation National Law (NSW) (the "National Law"); Health Care Complaints Act 1993 (NSW); Health Practitioner Regulation (NSW) Regulation 2010; Poisons and Therapeutic Goods Act 1966 (NSW). Cases Cited: Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 Health Care Complaints Commission v Philipiah [2013] NSWCA 342; R v Byrne (1995) 193 CLR 501 Texts Cited: Medical Board of Australia 'Sexual Boundaries: Guidelines for doctors' published 28 October 2011 ('the Sexual Boundaries Guidelines') Good Medical Practice: A Code of Conduct for Doctors in Australia-March 2014, Medical Board of Australia. Category: Principal judgment Parties: Applicant: Health Care Complaints Commission Respondent: Joselito De Leon Representation: Counsel: Applicant: Mr P Aitken Respondent: Nil Solicitors: Applicant: Karen Mobbs (Health Care Complaints Commission) Respondent: No Appearance File Number(s): 2018/00179594 Publication restriction: 1. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of Patient A or Patient B is prohibited. REASONS FOR DECISION Introduction 1. The respondent was born in 1965 and is 53 years of age. He graduated medicine in the Philipines in 1996. In 2008 he came to Australia with his family. He had a temporary work visa. He applied for registration as a medical respondent with the Medical Board of Australia. He was granted limited registration to work in areas of need. 2. He worked as a general practitioner in Australia in medical practices in Town 1 in Queensland from October 2009 to August 2012, during which period he worked part time as a general practitioner in a hospital cardiac rehabilitation centre. He worked as a general practitioner in the Philippines for about 11 months in 2012 – 2013. Then his next employment as a medical practitioner was as a general practitioner in a practice at Town 2 in New South Wales, which he did not commence until March 2015. 3. Patient A was a patient of his from August 2015 until July 2016. When he commenced her care she had a history, since losing her job in 2003, of major depressive disorder, anxiety and panic attacks, for which she had undergone psychiatric treatment and hospitalisation. There were allegations of her doctor shopping for Valium in December 2015 and overuse of benzodiazapines in 2016. She was a single woman who lived in her own home alone and was impecunious. She was vulnerable. 4. From March 2015 he was employed by, and under the supervision of, the principal of the medical practice in Town 2 in NSW. In August 2015 when Patient A began to be the respondent's patient she was troubled by depression and anxiety. 5. In a letter of 14 September 2016 written by his solicitor to the applicant, the respondent denied numerous allegations raised against him by Patient A. But he conceded the following: "Whilst my client denies the allegations of [Patient A] as set out above, he on review of the situation now appreciates that he did not handle the relationship in a proper and professional manner, he was extremely sensitive to her fragile mental state but in instead of taking greater measures to ensure that their relationship did not exceed the professional boundary in the small community, he acknowledges that he became frightened of her threats to ruin his family and career, particularly as she was related to a prominent family in the area. He now knows that this clouded his professional judgment and led him to initially trying to assist her by inviting her to attend church and taking her to dinner rather than simply giving her money for dinner and later resulted in him trying to appease her growing demands." 1. At the Town 2 practice he also had Patient B become one of his patients. She was one of his first patients at Town 2 and initially he did not have many patients and he telephoned her more than once a week asking how she was. He also offered to take her to lunch. When she said she had no money, he asked if she had any friends that could help and told her that he could help her if she did not have anyone to assist her. When she offered to sell him her abdominal sit up board, he bought it from her. He conceded that on one occasion when he telephoned her she said she had not eaten because she had no money and he offered to take her to a hotel for lunch. She agreed and they went together. Afterwards she invited him home to her place for a drink, but he declined. 2. On one occasion he was going to Town 3, about a 75 minute drive from Town 2 to have his car washed. He said that Patient B said she wanted to go to Town 3 to buy some pet food but did not have enough money for petrol. He said that as a favour to her he drove her with him to Town 3 and drove her to a pet food store, had his car washed and then drove her back to Town 2. He said in his statement given to the applicant: "Again, in hindsight, I should have been more mindful that, even though I was just helping her out, this situation can be and has been misconstrued as something else. I realise now that this action can be judged as crossing professional boundaries." 1. He visited her home on some occasions. 2. On 28 June 2017 the applicant wrote to the respondent raising 15 allegations made by Patient A with a request that he provide within 28 days a response to each of them. His response was not sent in 28 days. His reply sent by email on 9 August 2017, was not in the form of a statutory declaration or an affidavit and was not signed or dated. 3. On 10 November 2017 the applicant wrote a lengthy letter to the respondent. It raised numerous allegations by Patient A and the expert opinion of Dr Nespolon on some of them. It also cited some of the responses that the respondent had already given to those allegations. 4. The same letter raised numerous complaints in respect of his conduct towards Patient B including issues about the respondent's care and records. It also recited some of the expert opinions on those matters. The respondent did not reply to the issues raised by that letter. 5. By letter of 7 June 2018 the applicant notified the respondent that the applicant had decided to prosecute complaints against the respondent in this Tribunal. The Application commencing the proceedings is dated 7 June 2018. It was served on the respondent. 6. The respondent did not file any formal Reply in the proceedings denying any of the allegations against him in the application. 7. Proceedings were taken against the respondent by the applicant under s 150 of the National Law and were heard by a panel on 16 September 2016. Those proceedings concerned complaints by Patient A. The respondent was legally represented at the hearing. The decision of the panel was that conditions on the respondent's registration would not be sufficient to manage the risk his behaviour posed to the public. His registration was therefore suspended. In its reasons dated 18 October 2016 the panel said: "Dr De Leon demonstrated a lack of skill, knowledge and understanding in relation to prescribing and in relation to his responsibility to maintain professional boundaries. Together with his evasiveness and the implausibility of much of his evidence, we consider there is a high possibility of his having behaved, at best, grossly inappropriately in relation to the complainant. He showed little insight even into the errors of his admitted conduct and sought to minimise or justify it at every turn – often at the direct expense of the complainant. We consider Dr De Leon poses a significant risk to the safety and health of the public." 1. The hearing of these proceedings proceeded on 14 and 15 November 2018. The respondent was aware of the listing for the hearing. He did not attend and no legal representative appeared on his behalf. 2. He did not file any statement in the form of a statutory declaration or an affidavit. The statements he did file were not dated or signed. He did not make himself available for cross-examination. 3. Patient B gave further evidence by telephone and was questioned by counsel for the applicant and by members of the panel. The Complaints 1. The complaints are as follows: 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 (NSW) and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law"). HEREBY COMPLAINS THAT Dr Joselito De Leon of 255-279 Gregory Street SOUTH WEST ROCKS NSW 2431 ("the practitioner") being a medical practitioner registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (1)(l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge or 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 engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in Complaint One relating to the practitioner's breach of professional boundaries with and inappropriate conduct towards Patient A justify separate findings of unsatisfactory professional conduct or in the alternative, a cumulative finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT ONE In 1996 the respondent obtained his medical degree in the Philippines. He moved to Australia in 2008 on a temporary work visa and was granted limited registration (working in areas of need under supervision) as a medical practitioner that year. The respondent was employed at Town 2 Medical Practice, Town 2 NSW (the practice) from March 2015 until he was terminated from employment in September 2016. On 16 September 2016 the practitioner was suspended from medical practice following proceedings under section 150 of the National Law. The practitioner's registration as a medical practitioner expired on 5 March 2017. The practitioner treated Patient A at the practice on 19 August 2015 until late July/early August 2016. PARTICULARS OF COMPLAINT ONE In late August 2015 or early September 2015 during a consultation with Patient A at the practice the practitioner inappropriately invited or discussed Patient A accompanying him to Town 4 to play a social sport. In late May or early June 2016 during a consultation with Patient A the practitioner inappropriately invited or discussed Patient A accompanying him to his church. In late May or early June 2016 during a consultation with Patient A the practitioner inappropriately invited or discussed Patient A having lunch with him in Town 3 later on the long weekend from 11 to 13 June 2016. The practitioner breached professional boundaries with Patient A and/or acted inappropriately in that:- on or about 10 June 2016 the practitioner received Patient A at his home and had a discussion with Patient A; on or about 10 June 2016 at his home the practitioner inappropriately offered Patient A a bottle of wine as a gift; the practitioner was aware or ought to have been aware that that Patient A had been taking high dose benzodiazepines and had a history of excessive prescription drug consumption; the practitioner was aware or ought to have been aware that that Patient A suffered from mental health problems and emotional instability. On or about 10 June 2016 the practitioner failed to seek appropriate assistance for Patient A at his home, including the assistance of another health practitioner, an ambulance or mental health team in circumstances where Patient A: was making sexual advances towards the practitioner; was adversely affected by alcohol and/or prescription drugs; had a history of excessive prescription drug consumption. At Patient A's consultation with the practitioner on 16 June 2016 the practitioner failed to end or make adequate arrangements to end the therapeutic relationship in circumstances where:- the practitioner had breached professional boundaries as per particulars (1) to (5) above; the practitioner lacked sufficient skills to appropriately manage Patient A's psychological and substance abuse problems; Patient A and the practitioner discussed Patient A's view that she thought the practitioner wanted a relationship with her; Patient A expressed to the practitioner that she feared he would "slash her throat" and "dump her body" or words to a similar effect. On or about 16 June 2016 the practitioner inappropriately breached professional boundaries with Patient A in that: the practitioner met with Patient A at a Town 2 shopping centre ("the shopping centre"); the practitioner attended the shopping centre with Patient A and guided her on buying groceries; the practitioner gave Patient A $60.00-$70.00 or paid by debit card for her personal use to buy groceries; the practitioner later that evening met with Patient A for a meal at a country club and paid for Patient A's meal; the practitioner gave Patient A $20.00 in cash for her personal use. From 11 June 2016 to 1 August 2016 the practitioner breached professional boundaries with Patient A in that he inappropriately communicated with her in that: the practitioner sent 429 text messages and made 6 phone calls to Patient A from 11 June 2016 to 1 August 2016 none of which were clinically necessary or clinically relevant; of the 429 text messages, the practitioner sent 354 text messages to Patient A while the practitioner was on holidays with his family from 9 to 31 July 2016; of the 429 text messages, the practitioner sent Patient A sexually explicit messages between 23 and 24 July 2016 as set out in "Annexure A" to the Complaint; of the 429 text messages the practitioner sent personal text messages to Patient A on 23 and 24 July as set out in "Annexure B" to the Complaint; the practitioner responded to several text messages sent by Patient A on 23 and 24 July 2016 by sending sexually explicit text messages back to Patient A; after the practitioner ceased or attempted to cease the therapeutic relationship with Patient A on 25 July 2016 he inappropriately sent 14 text messages and made 4 calls to Patient A from 26 July 2016 to 1 August 2016 of a non-clinical nature. By his actions in particular (8), the practitioner breached professional boundaries and committed sexual misconduct as defined in the Medical Board of Australia 'Sexual Boundaries: Guidelines for Doctors' published 28 October 2011 ('the Sexual Boundaries Guidelines'). On 25 July 2016 the practitioner was on holidays when he called Patient A and inappropriately: told Patient A words to the effect, "This therapeutic relationship is over. You need to go somewhere else" without making any arrangements for her care; agreed to Patient A's request to call a pharmacist and authorise by telephone the dispensing of diazepam to Patient A; called a pharmacist and authorised by telephone that diazepam be dispensed to Patient A. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO The practitioner knowingly gave false or misleading evidence to the section 150 delegates of the Medical Council of New South Wales on 16 September 2016 in that:- he denied being the author of sexually explicit text messages to Patient A on 23 and 24 July 2016; he denied being the author of other text messages to Patient A on 23 and 24 July 2016; he claimed that Patient A had created the above text messages using a fake text message application on her phone. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge or 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. Each of the particulars in Complaint Three relating to the knowledge or judgment possessed, or care exercised by the practitioner towards Patient A justify separate findings of unsatisfactory professional conduct or in the alternative, a cumulative finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT THREE As for Complaint One. PARTICULARS OF COMPLAINT THREE On 19 August 2015 at Patient A's first consultation the practitioner failed to perform an appropriate assessment of Patient A prior to prescribing alprazolam in that: the practitioner failed to conduct an adequate history of Patient A's use of benzodiazepines; the practitioner failed to conduct an adequate history of noting that Patient A's DASS and K10 questionnaires revealed high levels of stress, anxiety and depression; Patient A was already taking an antidepressant, Pristiq, and on high doses of diazepam; the practitioner failed to change or increase the Pristiq dosage and consider adding other mood stabilizers; the practitioner failed to assess whether Patient A had an addictive propensity to additional, short-acting benzodiazepines. The practitioner prescribed Patient A with inappropriate quantities of diazepam form 1 September 2015 until 25 July 2016 in that: on 1 and 28 September 2015 the practitioner discussed with Patient A the importance of only taking prescribed amount of medication and diazepam's addictive properties; the practitioner noted on 3 November 2015, 3 March 2016, 12 April 2016, 20 June 2016, 8 July 2016 and 25 July 2016 that Patient A had been taking more than the prescribed dose of diazepam; the practitioner was aware from about 4 December 2015 that Patient A was doctor shopping; the practitioner was as are from about 9 December 2015 that another doctor planned to wean Patient A off diazepam; the practitioner prescribed Patient A with about 50 tablets of diazepam approximately every four weeks from 1 September 2015 until 25 July 2016. The practitioner prescribed Patient A with inappropriate quantities of alprazolam between 21 August 2015 and 8 July 2016 in that: the practitioner increased his prescriptions of alprazolam to Patient A from 0.5mg 1/2 tablet twice a day on 19 August 2015 to 1 tablet twice per day on 21 August 2015, to 1mg tablets on 3 November 2015 to 2mg tablets three times per day on 1 February 2016 until 31 March 2016; the practitioner prescribed Patient A with alprazolam exceeding the recommended dose in that she received nine prescriptions for alprazolam between 21 January 2016 and 21 May 2016; the practitioner had warned Patient A about her overuse of prescribed medications in September 2015; the respondent became aware on 27 October 2015 that Patient A had failed to inform him that she had been taking 6-8 panadeine tablets a day for several years; the practitioner became aware, including on 18 November 2015, 8 December 2015, 4 January 2016, 1 February 2016, 31 March 2016, 20 June 2016, that Patient A had been taking more that the prescribed dose of alprazolam; the practitioner was aware from about 4 December 2015 that Patient A was doctor shopping. The practitioner inappropriately prescribed Alprazolam to Patient A from 19 August 2015 to 8 July 2016 without an appropriate authority, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966 (NSW). The practitioner failed to make appropriate mental health referrals for Patient A from August 2015 to July 2016 other than providing Patient A with a referral letter on 21 April 2016 to a psychologist. COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: Contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 (repealed) (the 2010 Regulation) BACKGROUND TO COMPLAINT FOUR As for Complaint One. PARTICULARS OF COMPLAINT FOUR The practitioner failed to record the following information about his first consultation with Patient A on 19 August 2015, contrary to Schedule 2, clauses 1(2), 1(3), 2(1) and/or 2(2) of the 2010 Regulation: a detailed history regarding Patient A's use of benzodiazepines and social and psychological circumstances; whether Patient A's presentation to him occurred because of a recent higher level of anxiousness; whether he was of the opinion that Patient A had a diagnosis of anxiety; whether Patient A presented to the practitioner requesting alprazolam; the practitioner's clinical justification for prescribing alprazolam in circumstances where Patient A was already taking an anti-depressant and taking high doses of benzodiazepines. The practitioner failed to document the details of his telephone call to the 'Prescription shopping information service' concerning Patient A, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. The practitioner failed to document the attendance of Patient A at his home on about 10 June 2016, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. The practitioner failed to document the comment that Patient A made to him on 16 June 2016 that she did not attend his church because she was anxious and had recurrent thoughts that the practitioner would "slash her throat" and "dump her body somewhere", or words to similar effect, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. The practitioner failed to document that Patient A had sent him a text message on 4 August 2016 noting that she had spoken to a chemist and the chemist wanted him to write a script for Patient A's medication, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. The practitioner's overall record keeping for Patient A was deficient, contrary to Schedule 2, clauses 2(1) and or 2(2) of the 2010 Regulation, including that: the practitioner's notes were regularly brief and contained an inadequate history; the practitioner failed to record the number of tablets prescribed; the practitioner failed to record the reasons for changing medications; the practitioner's regularly failed to set out his clinical assessment and opinion of Patient A's presentation; the practitioner failed to document with context, his interactions with Patient A outside of the consultation setting including as referred to in Complaints One and Two. COMPLAINT FIVE Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (1)(l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge or 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 engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in Complaint One relating to the practitioner's breach of professional boundaries and inappropriate conduct towards with Patient B justify separate findings of unsatisfactory professional conduct or in the alternative, a cumulative finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT FIVE As for Complaint One. The practitioner treated Patient B at the practice on 24 March 2015 until 2 December 2015 ("the treatment period"). PARTICULARS OF COMPLAINT FIVE The practitioner breached professional boundaries during the treatment period in that: during consultations in the middle to end of 2015 the practitioner told Patient B that he wanted to be her friend and that he could take her out to lunch; the practitioner contacted Patient B by phone outside the consultation setting more frequently than once per week from about October 2015 for approximately six weeks or more including to: ask her how she was doing; tell her that she needed a friend; offer to be her friend; offer to take Patient B out for lunch; offer to take walks with Patient B outside consultations. On a date in about mid-late 2015 the practitioner breached professional boundaries with Patient B by: offering to buy lunch for Patient B; buying lunch for and having lunch with Patient B at a local pub; at the end of lunch telling Patient B words to the effect "I'll come over tonight". In about the middle of 2015 the practitioner breached professional boundaries with Patient B by: offering to give Patient B money; offering to give Patient B medication without charge; gifting Patient B with a stock of medication sufficient for several weeks. On several occasions in 2015 during the treatment period the practitioner breached professional boundaries with Patient B in that the practitioner: called Patient B by phone to ask her if it was okay for him to come over to her home to be a friend to her and to see how she was doing; visited Patient B's home in the evening after work hours. On a date in 2015 during the treatment period the practitioner breached professional boundaries with Patient B in that the practitioner: drove Patient B to Town 3, approximately one hour drive away from her home; spent approximately five hours with Patient B on this occasion including to go shopping for the practitioner to buy a bicycle. In the second half of 2015 during the treatment period the practitioner breached professional boundaries with Patient B in that the practitioner: called Patient B and suggested that he come to Patient B's home for a drink and to catch up, or words to that effect; was aware or ought to have been aware that Patient B had a history of excessive alcohol consumption; arrived at Patient B's home with a bottle of wine; at Patient B's house expressed to Patient B a desire to kiss her. By his actions in particular (6), the practitioner breached professional boundaries and committed sexual misconduct as defined in the Sexual Boundaries Guidelines. On several occasions in the middle to second half of 2015 during the treatment period the practitioner breached professional boundaries with Patient B in that the practitioner: Called Patient B and invited her to go out with him for dinner. Ignored or failed to adhere to his supervisor's warning or advice not to engage in such social activities with Patient B. In the second half of 2015 the practitioner breached professional boundaries with Patient B by: offering to purchase an abdominal board from her; attending Patient B's home; giving Patient B money for this purchase at her home. In the second half of 2015 the practitioner breached professional boundaries with Patient B by: offering to attend Patient B's home to assist her moving furniture; attending Patient B's home to assist her moving furniture. COMPLAINT SIX is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge or 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. Each of the particulars in Complaint Six relating to the knowledge or judgment possessed, or care exercised by the practitioner towards Patient B justify separate findings of unsatisfactory professional conduct or in the alternative, a cumulative finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT SIX As for Complaint Five. PARTICULARS OF COMPLAINT SIX On 30 September 2015 the practitioner failed to perform an appropriate assessment of Patient B prior to prescribing alprazolam 0.5mg twice daily in circumstances where: the practitioner's assessment of Patient B did not support the dose of alprazolam prescribed; the practitioner had increased Patient B's dose of Aropax from 40mg to 60mg per day only four days earlier; Patient B had a history of binge drinking alcohol including as recently as 29 September 2015 and 8 October 2015. The practitioner failed to obtain an appropriate authority prior to prescribing alprazolam to Patient B form 30 October 2015 and again on 2 December 2015, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966 (NSW). COMPLAINT SEVEN is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has: contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010) (Repealed) (the 2010 Regulation). BACKGROUND TO COMPLAINT SEVEN As for Complaint One. PARTICULARS OF COMPLAINT SEVEN The practitioner failed to document with context, his interactions with Patient B outside of the consultations at the practice and phone conversations, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. The practitioner maintained an overall inadequate record of his assessment of Patient B at his consultations with her at the practice during the treatment period, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. COMPLAINT EIGHT is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT EIGHT As for Complaints One and Five. PARTICULARS OF COMPLAINT EIGHT Complaints one, two, three, and five and the particulars thereof are repeated and relied upon both individually and cumulatively. Complaints one to seven and the particulars thereof are repeated and relied upon cumulatively. Annexure A Cuddle whem [sic] we see each other next week? Are you ok with that? As much as I want to be inside you, I want to show you that I really just want you; It is true that asian men are not well endowed; I did notice that you have a tight pussy which made me even hornier. Please go ahead. Put your finger in your pussy for me and come for me; I want your breasts in my mouth. I want you to such and nibble on your nice nipples. After that, I want to lick your body down to your pussy. I want your pussy in my mouth; Have you ever had affairs with married men; Ng [sic] into your pants. Our dirty little secret it is not hard to like you or fall for you … I want you to sit on my face while my tongue is in your pussy …" Annexure B e [sic] from just the sexual gratification; op [sic] over thinking it then; Just wondering if you have. It is true that asian men are not well endowed; Sorry. I inadvertently dialled your number. I will call him tomorrow. None really. I'm just at the library catching up on some reading. That's alright. Don't worry. I got that; I'm always in the library except when it is closed. Yes, I was here in the library while texting; I'm here because no one is at home. I am reading because it is good to keep the juices going. Lol! No, I'm not being hard on myself. I prefer to read here because there is no bed that will lure me to sleep. Lol!; And no, I am not here for the free wifi; Is that a threat or a promise; Good things; Regarding the texting. We should really limit it to save you the expense; If it is going against your beliefs, wouldn't it be better to stop? I am happy to stop now if it will make it better for you; and Two days ago we opened up to how we felt a [sic] each other like speed dating via text … yes, I remember now. It just seems that a lot of things have happened. The Evidence 1. The evidence comprises:- 1. NCAT Application and HCCC Complaint dated 7 June 2018 2. AHPRA evidentiary certificate (to be provided) 3. Medical Council of NSW evidentiary certificate (to be provided) 4. Affidavit of F D Shah sworn 18 July 2018 5. Affidavit of Dr F D Shah sworn 6 November 2018 6. Affidavit of Dr Shah sworn 12 November 2018 7. Complaint from Patient A dated 1 August 2016 8. Text messages between Patient A and the Commission dated 17 October 2016 9. Complaint by Mrs Wafaa Malak concerning Patient B received 31 October 2016 10. Statement of Patient B dated 7 June 2017 11. Statement of Dr Akram Malak dated 8 December 2016 12. Commission letter to expert Dr Harry Nespolon dated 3 October 2017 (incorrectly dated 10 March 2017) 13. Expert report from Dr Harry Nespolon dated 12 November 2017 14. Dr Nespolon's CV 15. Letter from the Commission to Dr De Leon dated 29 August 2016 16. Email from Meridian Lawyers dated 14 September on behalf of Dr De Leon, attaching: 17. Letter from Dr De Leon, unsigned, dated 14 September 2016 (signed letter not received by Commission) 18. Dr De Leon's CV 19. Email from Dr De Leon to the Commission dated 28 June 17, requesting to correspond by email 20. Email correspondence between the Commission and Dr De Leon from 28 June 2017 to 31 July 2017, including email from Dr De Leon dated 31 July 2017 21. Letter from the Commission to Dr Leon dated 28 June 2017 requesting a response to Patient B's complaint 22. Email from Dr De Leon to the Commission dated 9 August 2017 attaching: 23. Dr De Leon's unsigned response to Patient B's allegations 24. Email from the Commission to Dr De Leon dated 10 November 2017, attaching: 25. S40 Commission letter to Dr De Leon dated 10 November 2017 26. Email confirmation of delivery dated 10 November 2017 27. Email and letter from the Commission to Dr De Leon dated 22 December 2017 (1144AM) 28. Email and letter from the Commission to Dr De Leon dated 22 December 2017 (1145AM) 29. Email from the Commission dated 8 June 2018 to Dr De Leon enclosing letter dated 7 June 2018 30. Email error message of 8 June 2018 31. Affidavit of Feneil Dilip Shah dated 18 July 2018 32. S150 Proceedings Written Reasons for Decisions dated 18 October 2016 33. Synopsis of Notifications, Australian Health Practitioner Regulation Agency as at 13 September 2016 34. Letter from Dr Akram Malak to the Council dated 13 September 2016 35. Transcript of S150 Proceedings held on 16 September 2016 (CD-ROM with audio available on request) 36. Medical Board of Australia, Sexual Boundaries: Guidelines for doctors, 28 October 2011 37. Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, March 2014 38. NSW Health, Recognising and Managing Drug Dependent Persons-Notes for Medical Practitioners March 2015 (TG116A/15) 39. Expert Certificate from Geoffrey Campey, Computer Forensics Investigator, MCAA dated 22 August 2017, attaching documents at Tabs 40, 41, 42, 43 & 44 40. Photographs of text messages contained on Patient A's mobile phone, Nokia 8130 41. Text messages contained on Patient A's SIM card from Nokia 8130 42. Call charge records for Dr De Leon of outgoing calls from 9 June 2016 to 8 August 2016 43. Call charge records of Patient A's outgoing calls from 10 June 2016 to 7 August 2016 44. Email from NSW Police to the Commission dated 2 September 2016, attaching handwritten notes by Patient A concerning the conduct of Dr De Leon 45. Email from NSW Police to the Commission dated 26 March 2017 46. Text messages from 19 July to 7 August 2016 extracted from Dr De Leon's mobile ZTE BLADE by MCAA 47. Medicare records for Patient A from 1 July 2015 to 31 October 2016 48. Medicare records for Patient B from 1 July 2015 to 31 October 2016 49. Patient records of Patient A from Rocks Fair Medical Practice dated august 2015 to September 2016 50. Previous patient records of Patient A from Tristar Medical Group Town 2 and Dr Amarjit Ruba, GP 51. Patient records for Patient B from Rocks Fair Medical Practice dated July 2006 to May 2017 52. Oral evidence by Patient B on 14 November 2018. Relevant Legislative Provisions Unsatisfactory Professional Conduct / Professional Misconduct 1. "Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law as including: "Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience" (para 139B(1)(a)); "A contravention by the practitioner (whether by act or omission) of a provision of this law, or the regulation 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" (para 139B(1)(b)); and "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (para 139B(1) (l)). Improper or Unethical Conduct 1. In R v Byrne (1995) 193 CLR 501 the High Court held "improper" meant not in conformity with standards of professional conduct and practice. 2. In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 at [41] the Tribunal referred to dictionary definitions of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" and held that that definition should be applied in disciplinary proceedings under the National Law. Professional Misconduct 1. Under section 139E, for the purposes of the National Law "professional misconduct" of a registered health practitioner includes: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. 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. Poisons and Therapeutic Goods Act 1966 – S 28 prohibition on prescribing drugs of addiction in certain cases 1. This section provides:- "28. PROHIBITION ON PRESCRIBING DRUGS OF ADDICTION IN CERTAIN CASES (1) A medical practitioner or nurse practitioner must not, without proper authority, prescribe for or supply to any person a type A drug of addiction. (2) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe or supply a type B drug of addiction:- (a) for continuous therapeutic use by a person for a period exceeding 2 months, or (b) for a period that, together with any other period for which that drug or any other type B drug of addiction has been prescribed or supplied by the medical practitioner or nurse practitioner or has, to the medical practitioner's or nurse practitioner's knowledge, been prescribed or supplied by any other medical practitioner or nurse practitioner, would result in that drug, or that drug together with any other such drug, being prescribed or supplied for continuous therapeutic use for a period exceeding 2 months. (3)A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction. (4) For the purposes of this section, "the proper authority" means an authority under section 29 that authorises the medical practitioner or nurse practitioner to prescribe or supply the drug of addiction to the person concerned. (5) A drug of addiction may be prescribed for or supplied to a person by a medical practitioner or nurse practitioner without the proper authority if the medical practitioner or nurse practitioner is authorised by the regulations to prescribe or supply the drug without an authority under section 29. (6) In this section: "type A drug of addiction" means a drug of addiction prescribed by the regulations under this section as a type A drug of addiction. "type B drug of addiction" means a drug of addiction prescribed by the regulations under this section as a type B drug of addiction. "type C drug of addiction" means any drug of addiction (other than a type A drug of addiction)." Health Practitioner Regulation (New South Wales) Regulation 2010 - Schedule 2 Records kept by medical practitioners and medical corporations in relation to patients 1. The relevant provisions of this schedule are:- "1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another Expert Evidence 1. Dr Harry Nespolon is the expert engaged by the applicant to give an opinion as to whether, for the purposes of deciding whether professional conduct of the respondent that is established by the evidence amounts to unsatisfactory professional conduct or not. His report is 43 pages. His curriculum vitae is at Tab 13 and establishes very extensive qualifications and experience relevant to the opinions he was asked to provide. There is no challenge to his competence or expertise. 2. There was also expert evidence from Mr Geoffrey Peter Campey, a Computer Forensics Investigator. 3. Mr Campey has extensive qualifications as a lawyer and a technology expert particularly in the area of recovering and salvaging electronic messages from telephones and other sources. He extracted an extensive array of messages from the mobile phone of Patient A. He also salvaged hundreds of messages sent by the respondent to the mobile phone of Patient A and messages that she sent. There were also telephone call records that were recovered. There were outgoing voice calls, outgoing text calls, media messages and data downloads. He has also been able to identify times at which messages were sent and the times which they were received. 4. Mr Campey's investigation was assisted by investigations by the New South Wales Police Force, which provided photographs of the messages received on Patient A's mobile phone from the respondent. 5. There were also transcriptions of the text messages sent by the respondent to Patient A's mobile. 6. There were logs of telephone calls, voice messages and SMS messages between the respondent's telephone and the telephone of Patient A. The log of those calls extends to 32 pages. There was also a log of 16 pages of SMS calls sent by Patient A in the period 10 June 2016 to 7 August 2016. Complaint One – Findings 1. The Background to Complaint One is established by evidence of the respondent and documentary evidence. 2. Each of the particulars of Complaint One is alleged to constitute conduct by the respondent that amounted to a breach of professional boundaries by inappropriate conduct towards Patient A. In brief the complaints are:- 1. In August or September 2015 consultation invited or suggested Patient A accompany him to Town 4 to play a social sport. 2. In late May or early June 2016 – consultation with Patient A – respondent invited or discussed Patient A accompanying him to his church. 3. In late May or early June 2016 – consultation with Patient A – respondent inappropriately invited or discussed Patient A having lunch with him in Town 3 later on the long weekend of 11 – 13 June 2016. 4. Breach of professional boundaries or inappropriate conduct namely 1. On about 10 June 2016 the respondent received Patient A at his home and had a discussion with Patient A. 2. On about 10 June 2016 the respondent inappropriately offered Patient A a bottle of wine as a gift. 3. The respondent was aware or ought to have been aware that Patient A had been taking high dose Benzodiazepines and had a history of excessive prescription drug consumption. 4. The respondent was aware or ought to have been aware that Patient A suffered from mental health problems and emotional instability. 1. On or about 10 June 2016 the respondent failed to seek appropriate assistance for Patient A at his home including assistance of another health respondent, an ambulance or mental health team in circumstances where Patient A was making sexual advances towards him, was adversely affected by alcohol and/or prescription drugs and had a history of excessive prescription drug consumption. 2. At consultation on 16 June 2016 the respondent failed to end or make adequate arrangements to end the therapeutic relationship where:- 1. The respondent had breached professional boundaries as particularised above; 2. The respondent lacked sufficient skills to appropriately manage Patient A's psychological and substance abuse problems; 3. Patient A and the respondent discussed Patient A's view that she thought the respondent wanted a relationship with her; and 4. Patient A expressed to the respondent that she feared that he would "slash her throat" and "dump her body" or words to similar effect. 1. On or about 16 June 2016 the respondent inappropriately breached professional boundaries with Patient A in that:- 1. The respondent met with Patient A at the Town 2 shopping centre; 2. The respondent attended the shopping centre with Patient A and guided her on buying groceries; 3. The respondent gave Patient A $60.00-$70.00 or paid by debit card for her personal use to buy groceries; 4. The respondent later that evening met with Patient A for a meal at a country club and paid for Patient A's meal; and 5. The respondent gave Patient A $20.00 in cash for her personal use. 1. From 11 June 2016 – 1 August 2016 the respondent breached professional boundaries with Patient A in that he inappropriately communicated with her by:- 1. Sending 429 text messages and making six phone calls (of a non-clinical nature) to Patient A, none of which were clinically necessary or clinically relevant, 2. Of the 429 text messages, 354 were sent by the respondent while he was on holidays with his family from 9 – 31 July 2016, 3. Of the 429 text messages the respondent sent Patient A, on 23 and 24 July 2016 the six sexually explicit messages listed on Annexure "A" Complaint, 4. Of the 429 text messages the respondent sent, on 23 and 24 July he sent the 15 personal text messages set out on Annexure "B" to the Complaint, 5. The respondent responded to several text messages sent by Patient A on 23 or 24 July 2016 by sending a sexually explicit text message in reply; and 6. After the respondent ceased or attempted to cease the therapeutic relationship with Patient A on 25 July 2016 he inappropriately sent 14 text messages and made 4 phone calls (of a non-clinical nature) to Patient A from 26 July 2016 – 1 August 2016. 1. The complaint in particular 9 is that the conduct by the respondent in particular 8 breached professional boundaries and committed sexual misconduct as defined in the Medical Board of Australia "Sexual Boundaries: Guidelines for Doctors Published 28 October 2011" ("the Sexual Boundaries Guidelines"). 2. Particular 10 of Complaint One alleges that on 25 July 2016 while he was on holidays the respondent called Patient A and inappropriately: 1. told her "this therapeutic relationship is over. You need to go somewhere else" without making any arrangement for her care; 2. agreed to Patient A's request to call a pharmacist and authorise by telephone the dispensing of diazepam to Patient A; and 3. called a pharmacist and authorised by telephone that diazepam be dispensed to Patient A. 1. The conduct described in particulars (1) to (7) and particular 10 of Complaint One is proved by the statements of Patient A and the respondent and documentary evidence. 2. Dr Nespolon concluded that the conduct of the respondent in particulars 1 to 3 constituted breaches of professional boundaries and was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore in each instance unsatisfactory professional conduct. 3. On the evidence the conduct in Paras a, and b of particular 4 of Complaint One occurred in the context that the respondent knew that Patient A had been taking high doses of Benzodiazepines, had a history of excessive prescription drug consumption and suffered from mental health problems and emotional instability. 4. Dr Nespolon's opinion was that the conduct of the respondent described in particular 4 constituted breaches of professional boundaries, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore in each instance unsatisfactory professional conduct. 5. The allegations in particular 5 are proved by the respondent's statements. Dr Nespolon's opinion is that the conduct of the respondent described in particular 5 constituted breaches of professional boundaries, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct. 6. Particular 6 is that by failing to end the professional relationship with Patient A at the consultation on 16 June 2016 or to make arrangements to end it, he behaved inappropriately towards patient A. The failure occurred in the circumstances in particulars 1 to 5. The evidence established that the respondent lacked sufficient skills to appropriately manage Patient A's psychological and substance abuse problems. They discussed her belief that he wanted a relationship with her and she told him that she feared he would "slash her throat" and "dump her body", or words to similar effect. 7. Dr Nespolon's opinion was that the failures of the respondent described in particular 6 constituted conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore in each instance unsatisfactory professional conduct. 8. Particular 7 of Complaint One alleges 5 listed breaches of professional boundaries on or about 16 June 2016. The respondent does not dispute that they happened. Dr Nespolon's opinion is that in each of those instances the respondent's conduct fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct. 9. Particular 8 of Complaint One is the alleged breaches of professional boundaries by the respondent communicating inappropriately with Patient A by telephone and text messages, including some sexually explicit messages. Most of them were not clinically relevant. Dr Nespolon found that each of the 5 limbs of particular 8 constituted a breach of professional boundaries, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. Each was therefore unsatisfactory professional conduct. 10. Particular 9 of Complaint One alleges the conduct in particular 8 breached professional boundaries and committed sexual misconduct as defined by the Medical Board of Australia: 'Sexual Boundaries: Guidelines for Doctors' published 28 October 2011 ('the Sexual Boundaries Guidelines'). 11. Under the Sexual Boundaries Document "sexualised behaviour" includes words or behaviour that might reasonably be interpreted as being designed or intended to arouse sexual desire. It is obvious that the sexually explicit messages were such conduct, but in the overall context, the other messages and telephone messages were all part of a course of conduct to seduce Patient A and were sexualised behaviour that breached the sexual boundaries. The conduct in particular 8 was proved. Dr Nespolon's opinion is that it was conduct significantly below the standard of conduct one would reasonably expect from a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct. Complaint Two – Findings 1. The complainant relies upon the background to Complaint One. Those matters are established by evidence from the medical authorities and also from the respondent. 2. The transcript in evidence from the s 150 hearing by the delegates of the Medical Council on 16 September 2016 establishes the particulars of Complaint Two particular 1 as being the false denials and false claims made by him in evidence and referred to as paragraphs (a), (b) and (c) of particular 1. 3. The objective evidence from the experts in relation to the text messages, telephone calls and the alleged creation by Patient A of such messages establishes that his denials and claims about Patient A referred to in particular 1 are false. Particular 1 of Complaint Two has been proved. 4. The evidence therefore establishes that the respondent engaged in improper and unethical conduct relating to his purported practice of medicine. His conduct constitutes unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law. Complaint Three – Particular One - Findings 1. The background of Complaint One is also relied upon in Complaint Three. That background is established by documentary evidence and evidence of the respondent 2. In relation to particular 1 of Complaint Three, which concerns alleged inadequacies of the assessment at the first consultation with Patient A on 19 August 2015, there are four subparagraphs identifying alleged inadequacies of the assessment of Patient A prior to prescribing Alprazolam on 19 August 2015. 3. In relation to paragraphs (a), (b), (c) and (e) these matters are proved by the clinical notes of the respondent and evidence of Dr Nespolon. 4. Dr Nespolon said that the patient was a "new patient" and that the doctor was aware that she was taking 20-25 mg Diazepam each day. He reported:- "The only comment regarding her level of anxiety was that she is 'anxious'. It is not clear from the history whether [Patient A] presented with the goal of obtaining a prescription for Alprazolam. Dr De Leon performed both a DASS and K10 questionnaire. [Patient A] was already taking Pristiq in addition to her Diazepam. It is not clear from the notes why Dr De Leon decided to prescribe Alprazolam to a patient who was already on an antidepressant and already taking high doses of Benzodiazepine. Alprazolam is used in the short-term for acute anxiety. There is no record as to whether this was a recent higher level of anxiety. Dr De Leon should have seen a 'red flag' in his patient in that she was already taking high levels of Diazepam. It was likely that this patient would have had an addictive propensity to additional, especially short-acting, Diazepams. It is also not clear as to why Dr De Leon was prescribing this medication on an ongoing twice a day basis. Dr De Leon should have taken more detailed history regarding this patient's use of Benzodiazepines, should have taken history regarding the patient's current social and psychological circumstances. Given that the patient scores in the DASS and the K10 it was clear that the current treatment regime was not working. It would have been more appropriate to change or increase the Pristiq at this visit and considering adding psychological intervention. Dr De Leon should have considered contacting the Doctor Shopping Service given this was a new patient requesting Alprazolam. While not necessary at this time, consideration should have been given to specialist referral depending on Dr De Leon's clinical confidence in dealing with this situation. Dr De Leon did attempt to change her antidepressant medication with additional therapy (e.g. Seroquel). The notes are not clear why any changes were made or whether the medication was effective." 1. Paras (a) to (e) of particular 1 were proved. Dr Nespolon concluded that the respondent's conduct in particular 1 fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience but did not invite his strong criticism. It fell within paragraph 139B(1) (a) of the National Law and was therefore unsatisfactory professional conduct. Complaint Three – Particular Two 1. This particular alleged the respondent prescribed Patient A inappropriate quantities of Diazepam from 1 September 2015 to 8 July 2016. 2. The respondent started prescribing Alprazolam for Patient A from August 2015, commencing with 0.5 mg tablets and increasing in November 2015 to 1 mg tablets. Then in November 2015, to the 2 mg tablets three times a day. The latter was above the recommended dose. Despite regularly warning Patient A about the risk and consequences of addiction the respondent continued to prescribe and increase the dose. 3. Dr Nespolon said that subsequent to the first appointment, the respondent was prescribing about 50 tablets of Diazepam every 3-4 weeks, which of itself was not unreasonable. However, the respondent should have considered the patient's reported Diazepam use and compared that with the number of prescriptions he was providing. He did then know or should have known that the patient was doctor shopping. 4. The evidence establishes that Patient A received nine prescriptions for Alprazolam between 21 January 2016 and 21 May 2016 and did she did not go to her regular chemist to fill the prescriptions. The quantity (and dose) of the Alprazolam was more than the recommended dose. 5. Dr Nespolon opined: "Throughout the time Dr De Leon was seeing [Patient A] he was prescribing about 50 tablets of Diazepam every 3-4 weeks. This in itself is not unreasonable. However, Dr De Leon should have considered the patient's reported Diazepam use with the number of prescriptions that he was providing. The records showed that on 1 and 28 September 2015 the Respondent discussed with Patient A the importance of only taking the prescribed amount of medication and Diazepam's addictive properties. He noted on 3 November 2015, 3 March 2016, 12 April 2016, 20 June 2016, 8 July 2016 and 25 July 2016 that Patient A had been taking more than the prescribed dose of Diazepam." 1. The respondent was also aware from about 4 December 2015 that Patient A was doctor shopping and he was aware from about 9 December 2015 that another doctor planned to wean Patient A off Diazepam. He prescribed Patient A with about 50 tablets of Diazepam approximately every four weeks from 1 September 2015 – 25 July 2016. 2. Particular 2 was proved. 3. Dr Nespolon's conclusion was that the respondent's conduct alleged in particular 2 of Complaint Three was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct. Complaint Three Particular Three - Findings 1. This particular alleges the respondent prescribed Patient A with inappropriate quantities of Alprazolam in the period 19 August 2015 to 8 July 2016. There are 6 paragraphs of the particular alleging facts to support that allegation. Alprazolam is a Type B drug (Poisons and Drug 2008 – Reg 123 (a1)). It is a Schedule 8 drug under the Poisons and Therapeutic Goods Act 1966. Section 28 of that Act requires that a medical respondent must be authorised to validly prescribe Schedule 8 drugs. 2. From the respondent's clinical records and other evidence the allegations in particular 3 of Complaint Three are established on the balance of probabilities. Dr Nespolon noted that in August the respondent commenced prescribing the 0.5 mg tablets and the same month increased the dosage to the 1 mg tablets and then in November 2015 increased it to 2 mg tablets three times per day. That was above the recommended dose. Dr Nespolon stated:- "Despite regularly warning [Patient A], Dr De Leon continued to prescribe and increase the dose. It is interesting to note that [Patient A] was receiving nine prescriptions for Alprazolam between 21/1/2016 and 21/5/2016 but she did not go to the 'regular' chemist to fill the prescription. The quantity (and dose) was more than the recommended dose." 1. In relation to that conduct Dr Nespolon concluded that the respondent's conduct "fell below the standard expected of a practitioner of an equivalent level of training or experience" and was significantly below the standard. He found that it invited strong criticism. Accordingly the conduct the subject of particular 3 of Complaint Three has been found proved and was unsatisfactory professional conduct. Complaint Three - Particular Four – Findings 1. This allegation is that the respondent prescribed Alprazolam to Patient A from 19 August 2015 to 8 July 2016 without an appropriate authority required by s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW). In the s 150 hearing the respondent admitted that he did not have such an authority under that Act. He said that he did not know that he needed one. 2. Dr Nespolon reported:- "S 28 of the Poisons and Therapeutic Goods Act 1966 requires Dr De Leon to obtain an authority under s 28 (2)(a) for a person prescribed a Type B drug of addiction for more than two months. This section of … the Poisons and Drugs Regulations 2008, Regulation 123(a1) specifies Alprazolam as a Type B drug. [Patient A] was receiving this Alprazolam (a Schedule 8 drug) for more than two months and therefore Dr De Leon should have obtained a s 29 authorisation to prescribe." 1. The conduct was in breach of the law. It was improper and conduct relating to his practice of medicine. It came within para 139B(1)(l) of the definition of unsatisfactory professional conduct in the National Law. 2. Dr Nespolon's opinion is that his conduct was significantly below the relevant standard and invited his strong criticism. The conduct in particular 4 of Complaint Three was unsatisfactory professional conduct. Complaint Three - Particular Five – Findings 1. Particular 5 is that the respondent "failed to make appropriate mental health referrals for Patient A from August 2015 – July 2016 other than providing Patient A with a referral letter on 21 April 2016 to a psychologist". 2. When Dr Nespolon responded to the question of whether the respondent made appropriate referrals for specialist assistance when prescribing Schedule 4D and Schedule 8 medications to Patient A. He replied:- "The management of this condition should be within the skills of a general practitioner. These skills would be particularly necessary for rural areas where access to specialist psychiatrists is more limited. [Patient A] does tell Dr De Leon in February and March 2016 about sexual assaults that she suffered previously and the psychological problems she continued to have as a result of these attacks. [Patient A] also states that she has seen a number of psychiatrists and general Respondents since that time and only shared this information with one general practitioner [Patient A] was seeing a psychologist with the assistance for a GP Mental Health Care Plan from another general practitioner. She had been referred to another psychiatrist who she did not see. It is likely that given the failure of [Patient A's] care in the past that she would not be very compliant with referrals. [Patient A] does represent a complex mental health history with a history of multiple failed therapeutic manoeuvres. Continuing to refer [Patient A] for expert assistance would be preferable." 1. But Dr De Leon concluded that although the respondent's conduct at particular 5 fell below the standard expected of a respondent of an equivalent level of training or experience and was significantly below that standard, in all the circumstances this conduct did not invite criticism. Accordingly the conduct under particular 5 was not found to be unsatisfactory professional conduct. Compliant Four – Particular One– Findings 1. This particular alleges that the respondent failed to record various information about his first consultation with Patient A on 19 August 2015, contrary to Schedule 2 Clauses 1(2), 1(3), 2(1) and/or 2(2) of the Health Practitioner Regulation National Law (NSW) Regulation 2010. The medical records in evidence and the evidence of Dr Nespolon establish particular 1 of Complaint Four. 2. The records of 19 August 2015 did not comply with the specific provisions of Schedule 2 of the Regulation as specified in the Complaint. Dr Nespolon said at page 35 of his report:- "Dr De Leon's notes are brief, the notes record limited history and automatically record the prescription of medications. (However the number of tablets issued is not recorded). There is rarely any interpretation or clinical assessment of the patient. As noted in several places throughout this report Dr De Leon failed to record significant events both within the consultation (e.g. where the patient believed that Dr De Leon kill her) and outside the consultation room (the interactions at the patient's home and elsewhere). Other significant information admitted including the discovery of her doctor shopping status. Changes in her medication were often done without noting the reason why these changes were made. (However the number of tablets issued is not recorded). There is rarely any interpretation or clinical assessment of the patient. As noted in several places throughout this report Dr De Leon failed to record significant events both within the consultation … and outside of the consultation room …" 1. And later on the same page:- "The first prescription of Alprazolam by Dr De Leon was on 19 August 2015. Dr De Leon describes the patient as 'a new patient' who is taking 20-25 mg of Diazepam each day. The only comment regarding her level of anxiety is that she is 'anxious'. It is not clear from the history whether [Patient A] presented with the goal of obtaining a prescription for Alprazolam …" 1. And he says:- "[Patient A] was already 'taking Pristiq in addition to her Diazepam. It is not clear from the notes why Dr De Leon decided to prescribe Alprazolam to a patient who was already on an antidepressant and already taking high doses of Benzodiazepine." 1. The Conduct described in this particular was proved. Although Dr Nespolon found that the conduct of the respondent in relation to these matters under particular 1 of Complaint Four involved conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience, he found that it did not invite strong criticism. Despite the fact that it did not invite strong criticism, the conduct was unsatisfactory professional conduct within para 139B(1)(a) of the National Law. Complaint Four – Particular Two – Findings 1. This allegation is that contrary to the requirements of Schedule 2 clauses 2(1) and 2(2) of the Regulation Dr De Leon failed to document the details of his telephone call to the Prescription Shopping Information Service concerning Patient A. The records and the respondent's statements establish this particular. 2. Dr Nespolon in his report said that the fact that the respondent discovered the patient's doctor shopping status was significant information that was omitted from his records and this conduct was therefore a breach of the Regulation. He said that conduct was significantly below the relevant standard expected of a practitioner of an equivalent level of training or experience as the respondent and provided strong criticism. The conduct was therefore unsatisfactory professional conduct. Complaint Four – Particular Three – Findings 1. The allegation is that the respondent failed to document the attendance of Patient A at the respondent's home on about 10 June 2016 and that was a breach of Schedule 2, clauses 2(1) and/or 2(2) of the Regulation. 2. It is common ground that Patient A did attend the respondent's home on about 10 June 2016 and that the respondent failed to document such attendance. Given the nature of Patient A's illnesses, the recording of such event in her clinical notes was appropriate and desirable and was information that should have been included in order for any other medical practitioner to continue management of Patient A's case. The failure to record the event was a breach of Schedule 2, clauses 2(1) and 2(2). 3. Dr Nespolon described this attendance at the respondent's home as a "significant event". 4. In his report Dr Nespolon stated:- "The event itself was significant. The information is valuable to protect Dr De Leon and would provide valuable information to any future medical Respondent. While this may not be strictly clinical, it is a breach of the doctor/patient relationship. This should have been reported to the practice principal and his Medical Defence Organisation so that Dr De Leon could obtain assistance in preventing her presentation in the future. If Dr De Leon had contacted the Police then this should have also been noted." 1. Dr Nespolon's opinion was that the conduct of the respondent fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. Accordingly, that conduct was unsatisfactory professional conduct. Complaint Four – Particular Four – Findings 1. This particular alleges that the respondent failed to document the comment that Patient A made to him on 16 June 2016 that she did not attend his church because she was anxious and had recurrent thoughts that the respondent would "slash her throat" and "dump her body somewhere", or words to similar effect. The omission to record it was contrary to Schedule 2 clauses 2(1) and/or 2(2) of the 2010 Regulation. The evidence of the respondent is that the conversation occurred. There is no evidence that he recorded it in her clinical record. 2. Dr Nespolon found that the only report of this statement was contained in an email from the respondent's lawyer of 14 September 2016. It was not recorded in the clinical notes. That omission clearly breached clauses 2(1) and 2(2) of Schedule 2 of the Regulation. Dr Nespolon said that: "The event itself was significant. The information is valuable to protect Dr De Leon and would prove valuable to any future medical practitioner." and "It is not clear from the limited information regarding the statement above, as to exactly what context and meaning that it had … If Dr De Leon felt that the patient was trying to start a relationship with him or that he felt the need to share his personal circumstances in these circumstances, then this should have raised concerns about an ongoing therapeutic relationship. Once this conversation had taken place, Dr De Leon should have terminated the therapeutic relationship, even if this was an unintended result of the invitation to the church." And "The only context given to this comment is that it occurred during a presumed discussion regarding the status of the relationship between Dr De Leon and [Patient A]. One interpretation of this could be [Patient A's] response to being rejected by Dr De Leon. There is no evidence presented that [Patient A] suffered from a psychotic or paranoid illness and even if [Patient A's] complaint she makes no comment regarding this issue, rather, effectively stating that she had made prior arrangements. Dr Jonathon Carne, psychiatrist, in his letter of 27 August 2003 notes 'borderline personality traits – relationships of intensity, or that provide no comfort, history of self-harm, chronic feelings of emptiness, disconnection with her emotions, the intensity of emotion. It is not clear from the limited information regarding the statement above as to exactly what context and meaning that it had. It is not repeated in any of the other documentation'. If Dr de Leon felt that the patient was trying to start a relationship with him or that he felt the need to share his personal circumstances in these circumstances, then this should have raised concerns about the ongoing therapeutic relationship. Once this conversation had taken place and Dr De Leon should have terminated the therapeutic relationship, even if this was an unintended result of the invitation to the church." 1. His opinion is that the omissions were conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. Accordingly, the conduct was unsatisfactory professional conduct. Complaint Four – Particular Five – Findings 1. This is an allegation that the respondent failed to document that Patient A sent him a text message on 4 August 2016 noting that she had spoken to a chemist and the chemist wanted him to write a script for Patient A's medication. It is alleged that was contrary to Schedule 2 clauses 2(1) and/or 2(2) of the 2010 Regulation. It is the respondent's evidence that the conversation occurred. Dr Nespolon reported:- "It is difficult to understand the context of the comments made on 16 June 2016. There is no comment in the notes from Dr De Leon. But he did not document it. The only report of this aspect of the conversation was in an email from the Respondent's lawyer on 14 September 2016." 1. Dr Nespolon concluded that the conduct of the respondent particularised in Complaint Four particular 5, which was proved, was conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. Accordingly it was unsatisfactory professional conduct. Complaint Four – Particular Six - Findings 1. This allegation is that the respondent's overall record keeping for Patient A was deficient and failed to comply with the relevant provisions of Schedule 2 clauses 2(1) and/or 2(2) of the 2010 Regulation. 2. This is a complaint in respect of the overall standard of record keeping by the respondent for Patient A. The allegation is that his record keeping was deficient and did not comply with Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation. Paras (a) to (e) of particular 6 are particulars of such deficiencies, which were substantiated by the evidence. 3. The complaint was that the notes were brief, the histories were inadequate, he failed to record the number of tablets prescribed, and failed to record the reasons for changing medications. He regularly failed to set out his clinical assessment and opinion of Patient A's presentation, in relation to Patient A was deficient in that notes were regularly brief and the histories were inadequate. He failed to record the number of tablets prescribed, he failed to record the reasons for changing medications, he regularly failed to set out his clinical assessment and opinion of Patient A's presentation, and he failed to document with context his interactions with Patient A outside of the consultation setting including as referred to in Complaints One and Two. 4. The records clearly showed the inadequacies alleged. 5. The respondent's clinical notes were very brief and regularly did not provide an adequate history or provide a diagnosis. He failed to make a record of relevant interactions and conversations with Patient A outside the clinical setting. He did not make a record of relevant telephone conversations or electronic messages. He failed to record the number of tablets prescribed or the reason for changing medications. He regularly failed to set out his clinical assessment and opinion of Patient A's presentation He phoned Patient A frequently to check on her health, but did not document the calls or her responses. 6. Dr Nespolon reported:- "Dr De Leon should have recorded all interactions with [Patient A] given the nature f the relationship between [Patient A and himself]. Even taken at Dr De Len's interpretations of what was occurring, this should have been recorded." And: "Dr De Leon's notes are brief. The notes record limited history and automatically record the prescription of medications (however the number of tablets issued is not recorded). There is rarely any interpretation or clinical assessment of the patient. As noted in several places throughout this report Dr de Leon failed to record significant events both within consultation (e.g. where the patient believed that Dr De Leon would kill her) and outside of the consultation room (the interactions at the patient's home and elsewhere). Other significant information omitted included the discovery of [Patient A's] doctor shopping status. Changes in her medication was often done without noting the reason why these changes were made. Without much of the information listed in this paragraph it would be difficult for another doctor to take over the care of this patient." . 1. The respondent's clinical records of Patient A were seriously deficient and in numerous aspects contravened the 2010 Regulation. This conduct of the respondent came under paragraph 138B(1)(b) of the National Law and was thus unsatisfactory professional conduct. 2. Dr Nespolon concluded that the respondent's clinical records were significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. 3. Accordingly, this particular has been established and this conduct of the respondent was unsatisfactory professional conduct. Complaint Five – Findings 1. The applicant relies upon the background of Complaint One in relation to Complaint Five. Complaint Five relates to Patient B, who was treated by the respondent during the period 24 March 2015 – 2 December 2015. 2. Complaint Five relates to breaches of professional boundaries. There are 10 particulars of Complaint Five, each of which relates to more than one alleged incident of breach of professional boundaries. Complaint Five – Particular One 1. This particular raises two matters. The first is that in middle to late 2015 the respondent told Patient B that he wanted to be her friend and that he could take her out to lunch. The second is that he contacted her by phone outside the consultation setting more frequently than once a week from about October 2015 for approximately six weeks or more and did so for one or more of the following purposes:- 1. Ask her how she was doing; 2. To tell her that she needed a friend; 3. Offer to be her friend; 4. Offer to take her out for lunch; and 5. Offer to take walks with Patient B outside consultations. 1. The evidence of Patient B and some evidence of the respondent verified these allegations. Dr Nespolon stated that the offer to take Patient B out for lunch constituted asking her for a date. His view was that all of the conduct in particular 1 was a breach of the Code of Conduct for Doctors in Australia produced by the Medical Board of Australia, dated March 2014. The document is in evidence and para 8.2 provides:- "8.2 Professional boundaries Professional boundaries are integral to a good doctor–patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: 8.2.1. Maintaining professional boundaries. 8.2.2. Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law. 8.2.3. Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress." 1. The Sexual Boundaries Guidelines produced by the Medical Board of Australia dated 28 October 2011 were also in evidence. 2. The introduction of the document provides "Material from 'Good Medical Practice – The Code of Conduct'" particularly:- "1.4 Professional values and qualities of doctors Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality. 8.2 Professional boundaries Professional boundaries are integral to a good doctor–patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: Maintaining professional boundaries. Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress." 1. In Section 3 the document deals with "Understanding and Defining Sexual Boundaries". 2. "Sexual Misconduct" is stated to include:- "Engaging in sexual activity with a current patient with or without consent, a person who is closely related to a patient under the doctor's care, or a person formally under a doctor's care." 1. It also includes making "sexual remarks, touching a patient or clients in a sexual way, or engaging in sexual behaviour in front of a patient". 2. It also provides:- "In managing sexual boundaries a doctor should be aware that:- Sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire; Sexual exploitation or abuse includes sexual harassment or entering into a sexual relationship; Sexual harassment is unwelcome behaviour of a sexual nature including, but not limited to, gestures and expressions. The doctor's intention in behaving in this way does not minimise the seriousness of the behaviour. However, if they intended to offend, humiliate or intimidate the patient, then their behaviour would be regarded as even more seriously. Sexual behaviour includes:- (a) making an unsolicited demand or request whether directly or by implication for sexual favours; (b) Irrelevant mention of a patient's or doctor's sexual practices, problems or orientations; (c) ridicule of a patient's sexual preferences or orientations; (d) comments about sexual history that are not relevant to the clinical issue; (e) requesting details of the sexual history or sexual preferences not relevant to the clinical issue; (f) conversations about the sexual problems or fantasies of the doctor; (g) making suggestive comments about a patient's appearance or body." 1. It is also stated:- "Inappropriate disrobing or inadequate draping for a physical examination, and conducting intimate examinations without adequate prior explanation (and thus without informed consent) may be considered a breach of sexual boundaries and sexual assault ranges from physical touching (or examination without consent) to rape and is a criminal offence that should be investigated by the Police; and sexual relationship describes the totality of the relationship between two people when the relationship has some sexual element, including any sexual activity between the doctor and the patient. This is the case whether or not the sexual relationship was initiated by the patient." 1. The conduct under particular 1 Complaint Five has been proved from evidence from Patient B and to some extent from statements of the respondent. It constitutes breaches of professional boundaries. Dr Nespolon's opinion is that the conduct described in particular 1 was in breach of the professional boundaries seeking to establish a more intimate relationship with Patient B including asking her "for a date". Dr Nespolon said that the conduct in that particular was significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited his strong criticism. Accordingly the conduct in particular 1 was unsatisfactory professional conduct. Complaint Five – Particular Two 1. The allegation in particular 2 is that on a date in about mid – late 2015 the respondent breached professional boundaries with Patient B by offering to buy her lunch, by buying her lunch and having lunch with her at a hotel and at the end of the lunch telling Patient B "I'll come over tonight". 2. This conduct was proved. It breached professional boundaries. Dr Nespolon's opinion is that this conduct of the respondent "Fell below the standard expected of a practitioner of an equivalent level of training or experience. The conduct was significantly below the standard and invites strong criticism." Accordingly, the conduct constituted unsatisfactory professional conduct. Complaint Five – Particular Three 1. This allegation is that in about the middle of 2015 the respondent breached professional boundaries with Patient B by offering to give Patient B money; offering to give Patient B medication without charge; and gifting Patient B with a stock of medication sufficient for several weeks. These allegations have been proved. Dr Nespolon said that offering to give Patient B money was inappropriate and a breach of professional boundaries. As was offering to give Patient B medication without charge or gifting Patient B the stock of medication sufficient for several weeks. 2. Such conduct was, on Dr Nespolon's evidence, significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was unsatisfactory professional conduct. Complaint Five – Particular Four 1. The allegation is that on several occasions in 2015 during the treatment period the respondent breached professional boundaries with Patient B in that he:- 1. Called Patient B by phone to ask if it was okay for him to come over to her home and be a friend to her and see how she was doing; and 2. Visited Patient B's home in the evening after work hours. 1. Clearly this conduct, which was established on the evidence, breached the professional boundaries with a patient. In the opinion of Dr Nespolon, it was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism. Complaint Five – Particular Five 1. The conduct alleged that on a date in 2015 during the treatment period the respondent breached professional boundaries with Patient B in that he:- 1. Drove Patient B to Town 3, approximately an hour's drive away from her home; and 2. Spent approximately five hours with Patient B on this occasion including to go shopping for him to purchase a bicycle. 1. The evidence establishes that this conduct did occur. Dr Nespolon's opinion was that this conduct was significantly below the relevant standard and invited strong criticism. Accordingly, it was unsatisfactory professional conduct. Complaint Five – Particulars Six and Seven 1. Particulars 6 and 7 allege that in the second half of 2015 during the treatment period the respondent breached professional boundaries and committed sexual misconduct, as defined in the Sexual Boundaries Guidelines, with Patient B in that he:- 1. Called Patient B and suggested that he come to Patient B's home for a drink and to catch up, or words to that effect; 2. Was aware or ought to have been aware that Patient B had a history of excessive alcohol consumption; 3. Arrived at Patient B's home with a bottle of wine; and 4. At Patient B's house expressed to Patient B a desire to kiss her. 1. The respondent admitted his conduct and that it did breach professional boundaries. He had originally told the HCCC in August 2017 that he was going to Town 3 to "get his car washed", but the evidence of Patient B was that he told her he was going there "looking to buy a bicycle". 2. Dr Nespolon's opinion is that the conduct of the respondent described in particular 5 was conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It was unsatisfactory professional conduct. Complaint Five – Particular Eight 1. This complaint is that on several occasions in the middle to second half of 2015 during the treatment period the respondent breached professional boundaries with Patient B by:- 1. Calling Patient B and inviting her to go out with him for dinner; and 2. Ignoring or failing to adhere to his supervisor's warning or advice not to engage in such social activities with Patient B. 1. The evidence clearly establishes that the supervisor, Dr Malak warned the respondent against such conduct as a breach of professional boundaries but the evidence is that the respondent proceeded with the conduct. 2. Dr Nespolon agreed with the advice given to the respondent by his supervisor he should not have proceeded with such conduct. Dr Nespolon described the events of the night as "a date with [Patient B]". It was a breach of professional boundaries. Dr Nespolon found that the respondent's conduct under particular 8 was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invited strong criticism on each occasion. It was unsatisfactory professional conduct. Complaint Five – Particular Nine 1. This particular alleges that in the second half of 2015 the respondent breached professional boundaries with Patient B by:- 1. Offering to purchase an abdominal board from her; 2. Attending Patient B's home; and 3. Giving Patient B money for this purchase at her home. 1. It is common ground that the specified conduct occurred and that it was a breach of professional boundaries. 2. Dr Nespolon said that his arrangement to visit the home of Patient B was simply a pretence to visit her house and to give her money. He concluded that the conduct was significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. Accordingly, it was unsatisfactory professional conduct. Complaint Five – Particular Ten 1. This Complaint alleges that in the second half of 2015 the respondent breached professional boundaries with Patient B by:- 1. Offering to attend Patient B's home to assist her moving furniture; and 2. Attending Patient B's home to assist her moving furniture. 1. It is common ground that the conduct occurred. Dr Nespolon described it as "a pretence to attend the home of Patient B and spend time with her". It was a breach of professional boundaries. 2. Dr Nespolon's opinion was that the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and it invited strong criticism. Accordingly the conduct in particular 10 of Complaint Five was unsatisfactory professional conduct. Complaint Six – Particular One – Findings 1. This complaint alleges the respondent failed to perform an appropriate assessment of Patient B prior to prescribing Alprazolam 0.5 mg twice daily in circumstances where: 1. His assessment did not support the dose prescribed. 2. Had increased Patient B's dose of Aropax from 40 mg to 60 mg only four days earlier; and 3. Patient B had a history of binge drinking alcohol including as recently as 29 September 2015 and 8 October 2015. 1. Dr Nespolon reported:- "The first recorded prescription for Alprazolam is from 30 October 2015 consultation. The history presented is of persisting depression, and there is one line of 'generally feeling overwhelmed with panic'. There is no description of how this functional is affecting [Patient B]. Dr De Leon had seen [Patient B] four days earlier and increased her Aropax from 40 mg to 60 mg per day. If the increase in dose was to work, it would often take more time. This is a patient who has been known to binge drink alcohol. The dose of 0.5 mg twice a day would seem excessive in these circumstances. Alprazolam is a short acting Benzodiazepine taking it twice a day does not make much therapeutic sense, even in a patient with true Generalised Anxiety Disorder." 1. Dr Nespolon concluded the conduct of the respondent under this particular fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. It therefore constituted unsatisfactory professional conduct. Complaint Six – Particular Two – Findings 1. This complaint is that the respondent breached s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW) by failing to obtain an appropriate authority before prescribing Alprazolam for Patient B on 30 October 2015 and again on 2 December 2015. It is common ground that the respondent breached a section and did not obtain the necessary authority. Indeed, he said he did not know he was required to obtain an authority. 2. Dr Nespolon noted that the respondent was required under the Poisons and Therapeutic Goods Act 1966 (NSW) to obtain an authority under s 28(2)(a) in order to prescribe a Type B drug of addiction for more than two months. The Poisons and Drug Regulation 2008 in Regulation 123(a1) specifies Alprazolam as a Type B drug. This contravention of that section occurred on only two occasions (30 October 2015 and 2 December 2015). Although technically the prescriptions extended beyond two months, and the respondent therefore should have obtained an authority, Dr Nespolon found the conduct was significantly below the standard expected of a practitioner of an equivalent level of training or experience, but did not invite strong criticism. Under para139B(1)(a) of the National Law the conduct was unsatisfactory professional conduct. Complaint Seven – Particular One – Findings 1. This is an allegation that the respondent failed to "document with context, his interactions with Patient B outside of the consultations at the practice and phone conversations, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation". This was established by the documentary evidence. Dr Nespolon concluded:- "If Dr De Leon was checking on the patient's well-being, he should have noted the contents of these calls and any other interaction with the patient, within or outside of a formal consultation. Formal consultations should be noted. Home visits should be noted as soon as possible after they had occurred." 1. Dr Nespolon found that the conduct fell significantly below the standard reasonably expected of a practitioner with an equivalent level of training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct. Complaint Seven – Particular Two – Findings 1. This ground alleged that the respondent maintained "an overall inadequate record of his assessment of Patient B at his consultations with her at the practice during the treatment period, contrary to Schedule 2, clauses 2(1) and/or 2(2) of the 2010 Regulation". 2. In para 6.7 of his report, Dr Nespolon noted the respondent failed to document interactions with Patient B outside consultations at the surgery and also failed to document his telephone calls to check on her well-being. 3. Dr Nespolon said that the respondent's failure to record all his interactions:- "Is a significant failure. It would make it difficult for another doctor to take up the care of this patient. There are only a limited number of consultations presented in the notes. The history is more expansive than [Patient A's] notes, but there is a lack of an assessment of the patient on these consultations". 1. Dr Nespolon concluded that the conduct of the respondent in this particular fell significantly below the standard expected of a practitioner of an equivalent level of training or experience and invited strong criticism. 2. Accordingly, the Tribunal finds that this particular was proved and constituted unsatisfactory professional conduct. Complaint Eight 1. This complaint is that the respondent engaged in more than one instance of unsatisfactory conduct that, if the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 2. The Tribunal is satisfied that the findings of unsatisfactory professional conduct against the respondent are so extensive and so serious that protection of the public, the reputation of the profession and public trust in the profession require that his registration be cancelled. Together the instances of unsatisfactory professional conduct amount to professional misconduct. Review Application 1. Given the extent and seriousness of the respondent's unsatisfactory professional conduct and professional misconduct there should be an order under subsection 149C(7) of the National Law so that for 4 years after 14 November 2018 the respondent may not apply for a review of the cancellation. 2. The purpose of such an order is not punishment of the respondent, but protection of the public, protection of the reputation of the medical profession and to maintain public trust in the profession. Non-Publication Order 1. For protection of the privacy of patient A and Patient B a non-publication order should be made. Costs 1. The Tribunal's power to award costs is in Cl 13 of schedule 5D of the National Law. It provides that generally costs follow the event (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the applicant sought an order that the respondent pay the applicant's costs. The applicant has succeeded in the proceedings. Accordingly, there should be an order for the respondent to pay the applicant's costs. The applicant seeks $16,000.00. Given the complexity of the proceedings and work involved the Tribunal is satisfied that $16,000.00 is a fair and reasonable amount. Orders 1. Accordingly the orders are: 1. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of Patient A or Patient B is prohibited. 2. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 3. The Respondent's Registration as a medical practitioner is cancelled. 4. An application for review of the cancellation order (for a Reinstatement Order) may not be made until after 14 November 2022. 5. The Respondent must pay the Applicant a sum of $16,000 for its costs of or incidental to the proceedings. 6. The Registrar is requested to notify the Medical Council of New South Wales and the Australian Health Respondent Regulation Authority of these orders as soon as practicable. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2019