Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Silberberg [2019] NSWCATOD 56 Hearing dates: 18, 19 and 20 February 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr M Wroth, Senior Member Dr M Jarrett, Senior Member Honorary Associate Professor P Macneill, General Member Decision: 1. Dr Judith Silberberg ('the practitioner") is reprimanded. 2. Subject to Order 3, the practitioner's registration is suspended for a period of six months. 3. The operation of Order 2 is stayed for 21 days from the date of this decision. 4. On the expiration of the practitioner's suspension her registration is subject to the following conditions: (a) The practitioner shall not possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined in the Poisons and Therapeutic Goods Act 1966 (NSW) (b) The practitioner shall not possess, administer or prescribe midazolam in any form. (c) The practitioner shall practice under Category C supervision in accordance with the Medical Council of NSW's ("the Council") policy (as varied from time to time) and as subsequently determined by the appropriate review body. (d) The practitioner and her supervisor (who shall be a general practitioner engaged in providing "end of life care" to patients) shall meet not less than bi-monthly. (e) The practitioner shall prior to her first meeting with her supervisor provide to the supervisor, or any substitute supervisor, a copy of the Tribunal's decision. (f) The practitioner shall give any necessary authority and/or consent to the Council to exchange of any information between the Council and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 5 The practitioner shall submit to an audit of her medical practice by a random selection of her medical records by a person or persons nominated by the Council as follows: (a) the audit is to be held within six months after the expiration of the practitioner's suspension and subsequently if required by the Council; (b) the auditor is directed to assess the practitioner's compliance with good medical record keeping standards and legislative requirements; (c) the practitioner is to authorise the auditor to provide the Council a report of the auditor's findings; (d) the practitioner shall meet all costs associated with the audit and any subsequent audit and reports. 6. The Medical Council of NSW is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). In the event that the practitioner lives other than in NSW s 125 to s 127 of the National Law are to apply and a review of these conditions can be conducted by the Medical Board of Australia. 7. The practitioner shall pay the cost of the Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement as assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONS AND TRADES – health care professionals – medical practitioners - where practitioner admits her conduct prescribing for end of life patients constitutes both unsatisfactory professional conduct and professional misconduct – gravity of conduct – whether practitioner's registration should be cancelled or suspended. Legislation Cited: Evidence Act 1995 (NSW) Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (NSW) Regulation 2010 (repealed) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Chen v Health Care Complaints Commission [2017] NSWCA 186 Council of the Law Society of NSW v Parente [2019] NSWCA 33 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Richter v Walton CA 40309/93 15 July 1993 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Judith Silberberg (Respondent) Representation: Counsel: S Marbury (Applicant) R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth (Respondent) File Number(s): 2018/00215926 Publication restriction: On 17 August 2018 an order was made under Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law prohibiting the publication of the names of the patients set out in the schedule to the complaint. REASONS FOR DECISION Introduction 1. Dr Judith Silberberg is a general practitioner who, since about 2012, has worked exclusively in aged care. In 2015-2016 Dr Silberberg was the general practitioner for approximately 300 patients in aged care facilities including Marcus Loane Retirement Village, Bayview NSW, a facility conducted by Anglican Retirement Villages (ARV). A complaint, by a patient's relatives, about Dr Silberberg's prescribing for a palliative care patient living in the Marcus Loane Retirement Village was made to ARV in April 2016. 2. Following receipt of the complaint, ARV conducted a review of Dr Silberberg's practice, including a pharmacy review. That review disclosed prescribing for 14 patients, classified as "end of life patients", significantly outside the therapeutic guidelines. A report made to the Australian Health Practitioner Regulation Agency led to the Health Care Complaints Commission instituting professional disciplinary proceedings in the Tribunal. 3. In these reasons, for convenience only, we will refer to Dr Silberberg as "the practitioner", the Health Care Complaints Commission as "the HCCC" and the Medical Council of NSW as "the Council". 4. In September 2016, on becoming aware of the complaints against the practitioner, the Council appointed delegates to conduct proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). The delegates interviewed the practitioner and examined and reported on the files of eight patients. Those patients were the subject of the pharmacy review or referral to the Council by the HCCC. While the delegates considered the decision to commence "end of life" palliation was appropriate in all the cases reviewed, they expressed their main concern to be that the "high doses of drugs prescribed … were not in line with accepted standards". They also expressed concern about the practitioner's "idiosyncratic views, based on misconceptions, which she used to justify the doses of opiates prescribed" as well as her isolation from other practitioners, particularly those involved in palliative care. 5. The Council imposed conditions on the practitioner's registration. She was required to surrender her Schedule 8 (S 8) prescribing rights, and to undergo supervision at Level "c" (of the Council's supervision policy). 6. By the time of the hearing before us, the practitioner admitted the majority complaints particularised in the complaint annexed to the Application for Disciplinary Findings and Orders including a complaint of professional misconduct. This occurred after a preliminary hearing when certificates under s 128 of the Evidence Act 1995 (NSW) were granted by the Presiding Member. Further certificates were granted in the proceedings before us. 7. Some of the particulars of the complaint are not admitted by the practitioner (Complaint One particular 3, Complaint Two particular 6(b), Complaint Seven particular 1(a) and Complaint Ten particular 4(b)). These were not all strongly pressed by Mr S Maybury (Mr Maybury) counsel for the HCCC. Mr Maybury acknowledged that we may not be satisfied to the requisite standard that some particulars are proved. He stressed, however, that the admitted complaints disclosed serious breaches of clinical judgment and knowledge. 8. The HCCC submits that the appropriate protective orders in this case are that the practitioner's registration be cancelled and that the practitioner be precluded from applying for registration for a period of one year. The focus of the submissions, which we discuss more fully later in these reasons, is directed to deterrence and the upholding of the standards of the profession. The HCCC do not suggest that there is a risk to the public in the practitioner continuing to practise, provided appropriate conditions are imposed on her registration. 9. While fully and appropriately acknowledging the seriousness of the practitioner's conduct, which could justify the cancellation or suspension of her practitioner's registration, Ms R Mathur, (Ms Mathur), counsel for the practitioner, submitted that we could reprimand the practitioner, and continue her existing conditions. She did, however, acknowledge that we could make an order suspending the practitioner's registration, but urged if we adopted that course we should only impose a short period of suspension. 10. Like the delegates, and as now acknowledged by the practitioner, we find she prescribed significantly outside accepted standards, and in 2015-2016 held idiosyncratic views and was isolated from her peers. As we later more fully explain, although we find the practitioner now expresses a significant level of insight into her conduct and remorse for her prescribing regime, we conclude that her conduct was such a serious departure from accepted standards that her registration should be suspended for a period of six months and thereafter subject to conditions. Such an order reflects our condemnation of the practitioner's grossly inappropriate prescribing actions for her very vulnerable patients, her lack of documentation of her clinical decision making, upholds the reputation of the profession and acts as a deterrent to similar conduct by other medical practitioners. Issues in dispute 1. Although the practitioner put in issue several particulars of four complaints, the focus in these proceedings centred, not on proof of the complaints, but what protective orders should be made. The HCCC acknowledges that since the conditions were imposed by the Council, no matters adverse to the practitioner's practice in aged care have come to light. It was acknowledged that the predominant concern was not an issue of safety of the public provided stringent conditions, including restriction on S 8 prescribing rights, remained in place. Rather, our attention was focussed on appropriate protective orders. Thus we discern the relevant issues for us to determine are: 1. Does the practitioner still remain isolated in her practice, and if so, does that present a risk to the public? 2. Although the practitioner has been subject of a supervision condition, given the nature of her practice, going forward should any supervisor or mentor be a practitioner engaged principally in palliative care? 3. Does the practitioner demonstrate insight into her prescribing practices and is she genuine in her remorse? 4. Will the imposition of conditions, with subsequent review by the Council, adequately address all the necessary elements of a protective order? 5. Is it appropriate or necessary to cancel the practitioner's registration to reflect the serious departure from standards her repeated prescribing methodology during the period 2015 and 2016 represented? 6. If cancellation is not appropriate, does suspension of the practitioner's registration reflect her departure from accepted standards, offer sufficient deterrence to other practitioners and uphold the standard of the profession? 7. If suspension is the appropriate order, what conditions if any, going forward are necessary to protect the public? Background 1. The following facts, unless noted by us to be an allegation, are established as proven to the Briginshaw standard. 2. The practitioner graduated with the degrees of Bachelor of Medicine/Bachelor of Surgery from the University of Witwatersrand, South Africa in 1977. 3. The practitioner migrated to Australia and was first registered in this country in January 1979. 4. From 1979 the practitioner engaged in general practice. She opened her own general practice in St Ives, NSW in 1987. In about 2002 the practitioner moved to Avalon where she engaged in practice until 2010. She then engaged in solo practice in Narrabeen from 2010. 5. The practitioner engaged solely in aged care in her northern beaches practices from about 2012 and, by 2016, she was primarily engaged in aged care for nursing home residents with responsibility for approximately 300 patients across five nursing homes including Marcus Loane House. The practitioner worked in conjunction with a registered nurse, Ms Amy Bowen, (Ms Bowen) who she asserts was "transitioning" to the role of a nurse practitioner at the period of the complaints. 6. Conditions were imposed on the practitioner's registration on 6 September 2016. The Council referred the complaints about the practitioner to the NSW Coroner. 7. At the date of the hearing, the practitioner was engaged as a medical practitioner at five nursing homes on the northern beaches and was caring for approximately 200 patients. She asserts that she continues to work closely with Ms Bowen, but does not employ her or gain any financial benefit from Ms Bowen's practice. She says she does provide some administrative services to Ms Bowen free of charge and some expenses are paid for by Ms Bowen. The practitioner gave evidence that Ms Bowen is able to write prescriptions, including prescriptions for S 8 drugs and that Ms Bowen consults with the practitioner and other doctors. 8. The practitioner also gave evidence that she is unable, because of the conditions on her registration, to reduce the dose of a patient's opiate drugs and that Dr Phillip Norrie prescribes drugs for "end of life" patients. She also explained that, if Dr Norrie is unavailable, it may be necessary for an "end of life" patient to be transferred from the nursing home to hospital for palliation. The practitioner's practices including the use of a syringe driver 1. The practitioner's evidence before us is that after Marcus Loane House acquired a syringe driver, and then a second syringe driver, she used these devices in "end of life" cases. 2. A syringe driver is a small battery operated pump designed to deliver medication subcutaneously over an extended period. The pump holds a syringe containing medication and this is connected to the patient via a small needle and a line. The advantages of the device include the capacity to address multiple symptoms by combining drugs in the syringe or reservoir of the pump (see Parenteral infusions and syringe drivers: The Royal Melbourne Children's Hospital). We acknowledge that the evidence before us discloses that the use of syringe drivers in end of life care is wide spread. 3. The practitioner explained she used syringe drivers because the device enabled a steady or controlled flow of the drugs in the device to the patient without the peaks and troughs which may be experienced by medication administered "PRN" or at a specified hourly rate. She also explained that some nursing homes did not have a registered nurse available on a 24 hour basis, particularly at night, who could administer parenterally the necessary medication for end of life patients. 4. It is relevant that at this point that we note that Dr Patrick Coleman, (Dr Coleman) Consultant Physician, who is the practitioner's supervisor, in his letter to the practitioner's solicitors dated 24 October 2018 expressed his opinion that, although the practitioner acknowledges she used excessively large doses of opiates in certain end of life cases, it was the practitioner's intention at all times to alleviate suffering. Dr Coleman gave evidence that he regularly uses syringe drivers for his end of life patients. The relevant law 1. We now briefly note the relevant principles to be applied in disciplinary proceedings under the National Law. 2. The objects underpinning the National Law are found in ss 3 and 3 A (the latter being a NSW provision). Section 3 contains provisions which are relevant to these proceedings. 3. Section 3(2) and 3(3) provide as follows: (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. [our emphasis] 1. Section 3A, a NSW provision, is particularly relevant. It provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note. This section is an additional New South Wales provision. 1. The onus and standard of proof in disciplinary proceedings under the National Law are the subject of well-established principles. Although the rules of evidence do not apply (as distinct from legal professional disciplinary proceedings), it is well established that the applicable standard of proof is that discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. How a tribunal exercises its discretion to arrive at an evaluative judgment is discussed by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]-[21] as follows: The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.[footnotes omitted] 1. In this case the practitioner has made admissions of unsatisfactory professional conduct as defined in s 139B(1)(a) and professional misconduct under s 139E of the National Law. Those provisions respectively provide: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The agreed statement of facts 1. The parties helpfully provided an Agreed Statement of Facts to us. A copy of the statement is annexed to these reasons and marked "A". We refer below to some of the admissions made by the practitioner which are summarised in the statement, as well as in her Reply. The conceded complaints Concessions by practitioner in the statement of agreed facts and her Reply 1. Although the practitioner has admitted the fifteen complaints set out in the Notice of Complaint, but not all particulars, it is relevant that we now refer, in a summary manner, to her admissions given the serious prescribing irregularities in which she engaged, as well as her failure to keep proper records. In so doing we will refer to the evidence of the expert retained by the HCCC, Dr Stephen Howle (Dr Howle). 2. We pause to note that Dr Howle's curriculum vitae and his oral evidence before us discloses that he is a highly experienced general practitioner with extensive palliative care experience. We had no hesitation in accepting in the entirety of the opinions expressed in Dr Howle's report, his supplementary report, or in his oral evidence. His opinions are soundly based, referenced to relevant publications and MIMS prescribing information. 3. In the first part of Dr Howle's report dated 19 June 2017 he sets out the types of drugs administered to patients by the practitioner, the indications for the use of the various drugs, and the dosages used in accordance with therapeutic guidelines. Dr Howle was not challenged on this aspect of his report and we accept it reflects accurately the relevant drug indications and usages. His evidence accords with the professional members of the Tribunal's experience and expertise in care of the elderly and in palliative care. 4. The complaint which initiated the investigation of the practitioner's prescribing concerned prescribing for Patient A. The practitioner admits that she prescribed 10mg morphine twice daily on 3 February 2016 for Patient A while at the same time he was received occasional doses of hydromorphone and that this was in excess of therapeutic guidelines. On the same evening the practitioner, also in excess of therapeutic guidelines, prescribed 10mg morphine. 5. On 13 March 2016 the practitioner prescribed a syringe driver with a combination of 30mg morphine, 15mg of Midazolam and 5mg of haloperidol over a 24 hour period to be administered by registered nurses at Marcus Loane House. The medications in the syringe driver were repeated on the following days. The practitioner admits this prescribing was outside the therapeutic guidelines. 6. Dr Howle was very critical of the prescribing on 3 February 2016 of morphine for control of the patient's agitation noting that the patient's dose had gone from 0.75mg hydromorphone (4mg morphine) to 20mg morphine. He finds the practitioner's conduct to be significantly below the expected standard and is strongly critical. 7. Dr Howle also notes that the practitioner failed to make any recording of why she prescribed the Norspan patch. Significantly, he notes that as Patient A was unrousable or drowsy with no recorded agitation or pain that the introduction of the medication in the syringe driver was not needed. He is strongly critical of the practitioner's prescribing. 8. In relation to the patient records, Dr Howle very fairly notes: There are times where medications are added or changed with no record to support the clinical reasoning for this. This makes it confusing with respect to medication charts, as they of themselves are difficult to interpret at times. The records at other times are very reasonable. 1. We note that in her oral evidence the practitioner acknowledged the deficiencies in her record keeping. She explained that, as she was the only doctor treating the end of life patients, she believed, at the relevant time, no other doctor would need rely on her notes to take over the patient care thus, she did not fully record symptoms and signs as she should have done. 2. Dr Howle expressed his opinion about the particulars of the complaints in respect of the fourteen patients in a table. He found that the practitioner's diagnosis that the dying process had commenced for all patients, except Patient J and Patient L, and the need for palliative care was appropriate. In respect of Patients J and L, Dr Howle expressed some limited reservation in respect of timing based on the clinical records. Overall, however, it was not disputed before us that each of the patients the subject of the complaint were appropriately placed on an "end of life" pathway. 3. Dr Howle found the practitioner's prescribing for the cohort of patients particularised in the complaint was significantly below standard. The practitioner's concessions appear in the agreed statement of facts and it is unnecessary that we repeat them. It is telling, however, that Dr Howle did not find the medications used in the syringe driver for Patient B for were necessary given the patient's clinical presentation. 4. Dr Howle is also critical of the practitioner's prescribing of the large dose of Midazolam for Patient B and what appeared to be pre-emptive prescribing, referring to the dosage of 50mg hyromorphone, 30mg midazolam and 10mg haloperidol over 24 hours on 10 May 2015: 50mgsc/24hrs of Hydromorphone is equivalent to 5-6 times the dose of morphine (i.e. 250mg Morphine). This is nearly 3 times the last prescribed dose of Morphine in the syringe driver. It would appear to be a large increase when added to the Midazolam and an increased dose of Haloperidol and 10mg/24 hours. 1. Dr Howle makes similar findings in respect of the prescribing for each patient named in the complaint. In commenting on the drugs used in the syringe driver for Patient G, Dr Howle opines: I am unable to see any clinical notes indicating the need to increase the dosage regime in the SD [syringe driver]. All clinical notes suggest the patient was "unresponsive" or "unconscious". This if any change was to be made, would indicate a lowering of the dosage, not an increase. 1. Dr Howle makes similar comments about the drugs in the syringe driver for Patient H. These findings are similar to the findings of the delegates at the s 150 proceedings We note at those proceedings the delegates at page 16 recorded that Patient L's dose of morphine over 24 hours "was increased from 80mg (1 March 2016) to 200mg (3 March 2016) to morphine 240mg (4 March 2016) to 360mg (5 March 2016) to 480mg on the same day. [Patient L] appears to have had additional 'as required' doses of morphine between 20mg and 30mg each day". When questioned by the delegates the practitioner, who initially sought to defend her prescribing, admitted she should have called in the palliative care team for this relatively young dementia patient. 2. Patient I was also noted by Dr Howle to have a reduced level of consciousness and thus not to need Midazolam and Haloperidol. He also noted this patient's dose of hydromorphone 50mg (or 150mg) orally was "way in excess of her regular daily dose of 36mg orally". 3. We note that earlier in the s 150 proceedings Dr Greenaway recorded (at page 73) that the parenteral doses patients were receiving was "three or fourfold in excess of the conversion rate without apparent clinical indications for that". 4. Before us the practitioner sought to explain that she had made a fundamental error in her titration of oral morphine to morphine, or hydromorphone, for parenteral application. At para 44 of her statement the practitioner records: It is disappointing that not once was I ever questioned or corrected for my conversion error prior to the complaint. In many cases I wrote the patient's 'baseline dose' calculation somewhere on the medication chart to show the start point for calculating the syringe driver dose which then included anticipated breakthrough dosages. Not once did the pharmacist or the nurses question my incorrect conversion of the baseline dose, despite this mistake being a recurring one. Had this error in my conversations been highlighted to me, as they were later by the EyMed pharmacist in her report to ARV, I would have rectified this error in my knowledge base immediately. 1. We find it inherently unbelievable that this practitioner, who had experience as a qualified methadone provider, and who was a very experienced in this area, would not have looked at the results of her conversion and realised the dosages she was prescribing to be administered in the syringe driver were doses far in excess of recognised standards. We were also concerned that, although before us she said she did not seek to blame the nurses or pharmacist, that is not the tenor of her evidence in para 44. 2. If we are wrong in concluding the practitioner was, at best; either ignorant or careless in her conversion, we are nonetheless satisfied that she took no steps to check relevant publications such as MIMS. To her credit in answering questions in cross-examination, the practitioner conceded she had failed to do so in her mistaken belief she was an expert. 3. We find the practitioner's prescribing was, whether consciously or unconsciously, influenced by her close relationship with a number of her patients or their families, particularly Patients B, Patient C, Patient L and Patient N. 4. In summary, accepting Dr Howle's evidence, we are independently satisfied the complaints and particulars of them, except as discussed below as not established, are proven. The contested particulars 1. The practitioner does not admit the following particulars: 1. Complaint One particular 3. 1. The particular is framed as follows: On 9 March 2016, the practitioner prescribed 10mg Norspan patch to Patient A which was not clinically indicated in circumstances where there was no evidence of Patient A having increased pain. The HCCC submissions 1. In his submissions Mr Marbury relies on the expert evidence of Dr Howle to establish this particular. The practitioner's position 1. Although the practitioner denied in her Reply the increased dose was inappropriate, in cross-examination, she conceded, based on the nursing notes which disclosed the only incident of breakthrough pain was on 8 March with no complaint of ongoing increasing pain symptoms that day or the following day, that her prescribing was not clinically indicated. Conclusions Complaint One particular 3 1. We accept Dr Howle's opinion about this prescribing. We have also taken into account the practitioner's concessions made in cross-examination. We are satisfied this particular is established. Complaint Two particular 1(a) 1. This particular asserts: Between 29 April 2015 and 8 May 2015, the practitioner prescribed Midazolam every four hours PRN to patient B in circumstances where: (a) the prescribing was not clinically indicated. 1. It is not in dispute that the practitioner admits the quantity of the dose was in excess of the quantity indicated in the therapeutic guidelines. The practitioner's Reply and statement 1. In her statement at para 111 the practitioner explains that she prescribed Patient B Midazolam because she was "anticipating potential panic from dyspnoea". Earlier, at para 87, the practitioner notes "The Midazolam was chartered in anticipation of his clinical decline and for anticipated refractory symptoms". The expert report 1. Dr Howle notes in the table to his report that it appears Midazolam was not administered. He states: I am unable to confirm that the patient was suffering from terminal agitation but understand that Dr S was wanting to have medication available if such event took place. Discussion and conclusions 1. We find, on the evidence before us, there is some ambiguity about this particular. While the practitioner charted that Midazolam could be administered to the patient on an as required basis, there is no evidence that the drug was in fact administered. We also accept it is standard practice to prescribe reasonable doses of PRN medications in the end of life setting in case symptoms occur suddenly or progress quickly so as to enable nurses to respond quickly to the patient's condition. We are not satisfied this particular is established. 2. Complaint Two particular 6(b) On 10 May 2015, the practitioner ceased the dosage of 5mg Midazolam every two hours PRN and replaced it with 5mg Midazolam every four hours in circumstances where the dosage was not clinically indicated given: (a) Patient B was already having 30mg Midazolam every 24 hours through the syringe driver; (b) Patient B's clinical notes indicated he was "semi-conscious" and "nil agitation". The practitioner's evidence 1. The practitioner denies this sub-particular. 2. At para 96 the practitioner notes: On 10 May 2015 I have recorded in my notes that [Patient B] had increased agitation and restlessness. He was in a distressing state, The dose increase occurred in the afternoon and consistent with the notes recording severe agitation. The note including 'semi conscious" "nil agitation" was from hours after the increase in medication. There is additional information within the End of Life Plan, which has not been produced as part of the records from ARV. 1. In her oral evidence the practitioner explained that she kept her clinical records on a "cloud" based system, and that ARV had not produced all clinical records. The practitioner also explained that the time recorded in the clinical notes was not necessarily contemporaneous with the actual observations of the patient. 2. There is a conflict between the nursing clinical notes and the practitioner's notes. Had the practitioner transcribed her notes from the 'cloud' based system into the nursing clinical notes, this issue would not have arisen. We are critical of the practitioner for not having done so. However, in light of the ambiguities in the evidence, we cannot be satisfied that this sub-particular is proven. Complaint Seven particular 1(a) 1. This particular relates to Patient G. Patient G had a history of ischaemic heart disease, cerebrovascular disease, osteoporosis and asthma. She died on 29 July 2015. 2. The particular is framed as follows: On 27 July 2015 the practitioner prescribed the following drugs "stat" and then hourly PRN to Patient G in circumstances where the prescribing was not clinically indicated. (a) 1mg hydromorphone The HCCC's submissions 1. Mr Maybury acknowledged that we may not be satisfied that this particular was established to the requisite standard because of disparities in the clinical records. The practitioner's Reply 1. The practitioner disputes this particular. At para 182 she states: The prescription was for 1mg (1/2ml) of 2mg/ml of hydromorphine as a stat dose. Not 2mg of hydromorphonne dose (page 58 of Tab 32, vol 5 HCCC's evidence). 1. In his report Dr Howle responds to the question posed by the HCCC "Was the 1mg hydromorphone stat and then hourly PRN that was prescribed for [patient's name] on 27 July 2015 clinically indicated? Dr Howle opines: I am unable to elicit from the clinical record any reason for prescribing the opioid Hydromorphone stat and PRN. There is no indication that the patient was in pain or agitated. The medication chart (page 58 tab 32 of Vol 5 (Exhibit "E") contains two entries both handwritten by the practitioner and dated 27 July 2015. The entries record: 1 Dilaudid [=hydromorphone] 2mg/ml 1m stat (1/2ml) then hourly PRN. 2 Midazolam 5mg/ml (unclear) 2.5mg stat then hourly PRN. The records contain another entry at page 1 Tab 32 of Vol 5 (Exhibit "E") again handwritten by the practitioner and dated 27 July 2015. This entry, which is difficult to read, records: 1 Dilaudid [=hydromorphone] (?) 2mg (or ?12mg) in 24 hrs by syringe driver. This entry is partially crossed out although a signature appears for a dose apparently given at 18.30. A further entry on page 1 reads: 2 Dilaudid 2mg/ml 2mg hourly prn breathlessness, agitation, distress, SOB, tachypnoea. The records indicate at least one dose has been given, but the time is illegible. The entry further records: 3 midazolam 15mg 24 hrs by syringe driver 4 haplperidol 5mg/ml in 24 hrs by syringe driver 5 glycopyrrolate. 1. It appears that in denying this particular, the practitioner has not referred to her entries found at page 1. We infer she has denied this particular relying on the records at page 58. The records on their face are somewhat confusing. However, we are satisfied that the entry on page 1 supports the establishment of the particular. The notes at p 1 are the nursing home notes relied on by the nursing staff to administer the drugs prescribed if necessary on an hourly basis. The "Stat" and PRN dose was not clinically indicated when the patient was, on the same day, prescribed 2 Dilaudid 2mg/ml 2mg PRN. We are satisfied this particular is established. Complaint Ten particular 4(b) 1. This particular in respect of Patient J asserts: The practitioner failed to maintain adequate clinical records for Patient J in that the practitioner did not record: (a) … (b) clear instructions regarding what opioids Patient J was having regularly between 10 April 2015 and 25 April 2015. 1. Mr Maybury conceded that we may not be satisfied this particular is established given the gaps in the clinical notes produced by ARV. The practitioner's reply 1. At para 234 of her statement the practitioner states: The medication charts for the period from 10 April to 23 April 2015 are missing from the records served by the HCCC. The chart contained within the records provided records 'old' and are not the relevant charts for Patient J for the period 10 April 2015 to 23 April 2015. 1. The notes produced in the clinical records of Exhibit F Tab 37 and 38 do not assist us. The notes at Tab 37 contain entries for 16 April, 20 April, 22 April, and 24 April 2015. The notes produced by ARV contain medication charts for November 2014 and then 24 April 2015. There are no medication charts for the period particularised in sub-paragraph (b). We agree with Mr Marbury that, on the state of the evidence before us, we could not be satisfied that this sub-particular is established. 2. Complaint Fourteen particular 1(b) 3. This sub-particular asserts: On 2 November 2015, the practitioner prescribed the following drugs PRN to Patient N in circumstances where the prescribing was not clinically indicated given that Patient N was not anxious or agitated: (a) … (b) 2.5mg haloperidol every six hours 1. The HCCC rely on the expert evidence of Dr Howle to prove this particular. The practitioner's reply 1. The practitioner states at para 284 of her statement: I prescribed haloperidol with a maximum dose of 5mg per 24 hours as an intra-cranial haemorrhage was suspected and potentially, vomiting was a possibility. Dr Howle's evidence 1. Dr Howle in the schedule to his report notes that "There is nothing in the clinical notes suggesting uncontrolled terminal agitation, or vomiting. I do not believe it was clinically indicated." 2. We accept Dr Howle's opinion. We are satisfied that this prescribing was not clinically indicated at the time, but was another case where the practitioner anticipated symptoms which may or may not occur. We are satisfied that this particular is established. Discussion and conclusion – contested particulars 1. The particulars we have found established fall within the type of conduct particularised elsewhere in the complaints. We are satisfied that the particulars we have found established are each significantly below the standard expected and constitute unsatisfactory professional conduct. Professional misconduct 1. We are satisfied that the practitioner's concession that her many instances of unsatisfactory professional conduct, considered cumulatively, constitutes professional misconduct, is appropriately made. The serious and repeated prescribing contrary to the guidelines is conduct which is so serious that it justifies the cancellation of the practitioner's registration. Protective orders Relevant principles 1. The principles relevant to the making of protective orders are well-established. As long ago as 1993 the Court of Appeal in Richter v Walton CA 40309/93 15 July 1993 (unreported) explained that the disciplinary power exercised by a tribunal is to protect the public, not to discipline the practitioner. Kirby P and O'Keefe AJA explained the nature of the order is "entirely protective". Their Honours also said: Punishment is not the purpose of the proceedings. That purpose remains, from first to last, the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour … 1. In the same case, Priestley JA in his separate reasons referred to the power imbalance between a doctor and patient, as well as the issue of public interest. His Honour's remarks are particularly apposite when discussing "end of life" patients. His Honour said: The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards and the protection of the public are considered in relation to which happened in the present case, … 1. More recent decisions emphasise not only the protection of the public, but the deterrent aspects of an order, and the requirement that any order made upholds the standards of the profession. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA explained: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Later in his reasons at [39-40] Meagher JA discussed how the Tribunal in confining itself to issues relating to the protection of the public, had failed to consider other important and relevant aspects of the protective order it made. His Honour explained: In concluding that the public could be protected adequately by the imposition of conditions which had to be complied with before the respondent could reapply for registration, the Tribunal focused only on the protection of the public from further malpractice or misconduct of the respondent. It did not address at all the public interest in having the respondent's conduct denounced as unacceptable. Nor did it address the full implications of its finding that the respondent's conduct, although contained or confined, had revealed her "knowledge, skill and judgment in the practice of medicine" to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience: [2013] NSWMT 7 at [144]. In not addressing these matters the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public, as it was required to do by ss 3A and 4 of the National Law. It follows that the Commission's principal argument should be upheld and that this Court must re-exercise the Tribunal's disciplinary power in the light of the Tribunal's earlier findings. [footnotes omitted]. 1. In recent proceedings in the Court of Appeal in Council of the Law Society of NSW v Parente [2019] NSWCA 33 Brereton JA, in dealing with an application seeking the removal of a legal practitioner's name from the roll on the basis the practitioner was not a fit and proper person to be a legal practitioner, emphasised another aspect of protective orders. His Honour said: However, the protective jurisdiction is concerned with more than protection of clients and other members of the profession; it is also concerned with protection of the reputation of the profession and the maintenance of public confidence in it. 1. While these comments are directed to orders where a solicitor has been found not to be a fit and proper person to remain on the roll of practitioners, we find they are apposite to this matter. The evidence relied on by the practitioner Dr Patrick Coleman – supervisor 1. Dr Patrick Coleman is the practitioner's Council appointed supervisor. 2. Dr Coleman provided a report dated 24 October 2018 to the practitioner's lawyers in response to questions posed by those lawyers. Also before us was a supervision report, undated, but stamped received by the Council on 8 August 2017. Dr Coleman provided further supervision reports dated 30 April 2018 and 25 June 2018. Dr Coleman gave extensive oral evidence before us and was extensively cross-examined. 3. In his first supervision report Dr Coleman noted he had met with the practitioner on five occasions between December 2016 and May 2017. Dr Coleman recorded that he had spoken with the directors of the nursing homes attended by the practitioner. He reported that each director spoke in effusive terms about the practitioner. He also set out details of his interaction with Dr Philip Norrie, the practitioner who has been prescribing S 8 drugs for patients otherwise under the care of the practitioner. 4. Dr Coleman, who at the time of his report was one of the clinicians on the roster at Manly Hospital (and now at Northern Beaches Hospital), expressed his concern that because of the current conditions on the practitioner's practice, that patients, including those cared for by the practitioner and who have multiple co-morbidities, could be inappropriately transferred to hospitals by ambulance for end of life care. 5. Dr Coleman opined the practitioner has fully acknowledged and embraced the Council's concerns about her prescribing. 6. In his first meeting with the practitioner Dr Coleman recorded: We are both agreed and Dr Silberberg in particular on reflection that the initial opiate dosing and speed of escalation of dosing should have been lower, more in keeping with "start low, go slow" approach and in keeping with published palliative care guidelines. 1. In commenting on the practitioner's record keeping Dr Coleman noted "Medical records – this is not at issue, but Dr Silberberg is addressing the issue of maintaining parallel notes". 2. In his March 2017 report Dr Coleman noted, amongst other matters, that the practitioner was meticulous in keeping contemporaneous medical records. 3. In his report of his meeting with the practitioner on 30 August 2017, Dr Coleman made a recommendation to the Council that the conditions on the practitioner's registration should be removed and opined that he had no concerns about the quality of her practice. 4. In his April 2018 report Dr Coleman recorded that he had no concerns about the practitioner's compliance with the conditions on her registration. He was complimentary about medical records which the practitioner produced to him. He also recorded a conversation with the Director of Emergency Medicine at Mona Vale Hospital who he said had expressed the view that the practitioner's referrals to the emergency department were appropriate and supported by useful correspondence. 5. In his June 2018 report to the Council, Dr Coleman referred to his receipt of a copy of an email from Dr Phillip Norrie. Dr Norrie is noted to have expressed frustration at having to continue to assist the practitioner by prescribing s 8 medication. Dr Coleman noted that practitioner's attendance at conferences. He opined: On the basis of the many meetings we have had since this process was initiated, I am confident Dr Silberberg understands the issues raised and has amended her practice appropriately and accordingly. 1. Dr Coleman's oral evidence expanded and confirmed the evidence in his reports. He explained that the practitioner was always at pains to show him her medical records [transcript 19 February 2019, p. 68]. 2. Dr Coleman explained that, although he may need to start at least one and up to four patients per week on end of life care pathways, including a pathway involving a syringe driver, in so doing he had the benefit in the public health system of outstanding residents and registrars with whom he conferred in his decision making process. For his patients who are admitted to a private facility he explained that he would recruit the assistance of palliative care specialists. Dr Coleman also explained he is not an expert on the use of opiates in pain management, that he is not a palliative care specialist, but that he regularly used opiates for in-patients in hospital [transcript 19 February 2019 p. 64]. 3. Dr Coleman expressed the view that in 2015/2016 the practitioner had become isolated. He attributed this to the lack other doctors offering aged care in the northern peninsula of the northern beaches area. He concluded his evidence by confirming that, in his opinion, the practitioner should have exercised greater restraint in her prescribing, but that she had reflected on her own practices, "to adopt a more start low/go slow approach" to providing end of life care. 4. We accept that the opinions expressed by Dr Coleman are genuinely held views. We find he has engaged with the practitioner on a regular basis, and has established a good professional rapport with her. We find that the practitioner has acknowledged her previous inappropriate prescribing practices to Dr Coleman. 5. We also find, because of the conditions on the practitioner's registration, that there have been practical limits on Dr Coleman's ability to discuss individualised end of life patient decision making for the practitioner's current patients. We also find that supervision discussions have not focussed specifically on the prescribing as particularised in the complaint although we accept that Dr Coleman has seen the complaint the subject of these proceedings. We find Dr Coleman's evidence is relevant to the issue of public safety, and the needs of the community in the northern beaches area. We have given these matters weight in our consideration of appropriate protective orders. Dr Michael Diamond – treating psychiatrist 1. The practitioner commenced seeing Dr Michael Diamond, psychiatrist in March 2018 following a referral by Dr Phillip Norrie who is the practitioner's long standing general practitioner. Dr Diamond explained the referral was for treatment of the practitioner's depressive illness. 2. Dr Diamond, a highly qualified and experienced clinical and forensic psychiatrist, provided a comprehensive report dated 26 November 2018 and he gave oral evidence before us. We were assisted by his evidence. He emphasised that he envisaged having a future role in the care of the practitioner. We are cognizant of his important therapeutic role. 3. Dr Diamond opined: On assessment, it was clear that she had severe depression with melancholic features including regular early morning waking, a pervasive depressed mood with lack of energy, drive and optimism. Her appetite was poor. She described total anhedonia and lack of interest in anything external to her. She had suicidal thoughts and stated that she wished she was dead but said she was not suicidal because of her children. 1. By April, 2018 Dr Diamond noted the practitioner reported a distinct and positive response to the antidepressant medication he had prescribed. Her improvement at subsequent consultations was noted. In November, the practitioner's depression had not resolved and she agreed to a trial of different medication. 2. Dr Diamond explained that, although he had not seen the complaint in these proceedings at the time, the practitioner had discussed her conduct. He opined: She was capable of reviewing and reconsidering what she did. She reflected deeply upon the difficulties of working in end of life medical care. 1. Dr Diamond set out his diagnosis at page 6 of his report as follows: Diagnostically at this point the diagnosis remains Major Depressive Disorder with melancholic features. The diagnosis of Bipolar Disorder is suspected but not confirmed and the use of a mood stabilising anticonvulsive medication is in keeping with this view. The effect of this medication when the appropriate dose has been reached, will be assessed. 1. Dr Diamond was asked to respond to the following question: If possible, are you able to provide a view in relation to whether or not Dr Silberberg has developed sufficient insight into the issues within the Notice of Complaint which would assist in negating the same conduct from reoccurring? 1. Dr Diamond replied: I do have a view about Dr Silberberg's development of sufficient insight into these issues. I have come to know Dr Silberberg during her contact with me as a compassionate doctor with a developed empathic understanding of the complex problems that are faced by patients at the end of their lives and by the associated family and loved ones. She has a clear awareness of the difficult area of medicine that surrounds the doctor's responsibilities to provide useful, compassionate and ethical intervention to assist the dying process once that inevitable stage has been identified. Dr Silberberg has engaged in discussions with me at her regular appointments that demonstrates the extent to which she has grappled with the intrinsic difficulties of the role she takes as a medical practitioner managing end of life cases. 1. Dr Diamond noted the practitioner had reflected on criticisms of her practice, that she had not taken a "defiant or oppositional approach" to the matters before the Tribunal. He concluded his response to the question posed by opining: On balance, my view is that Dr Silberberg has developed sufficient insight to sensibly address those issues within the Notice of Complaint. 1. The lawyers then asked Dr Diamond to comment on whether or not he would support the practitioner being able to continue to practise subject to the same or similar conditions currently on her registration. He responded positively to this question noting that his view about the practitioner continuing to practise subject to compliance with the conditions currently on her registration. 2. Towards the end of his report Dr Diamond stated that he had read the Notice of Complaint in detail. He commented that "the multiple complaints are concerning in each case". 3. Dr Diamond concluded his report as follows: It remains for the Tribunal to determine its view of the conduct of Dr Silberberg with regard to the complaints. My view however is that Dr Silberberg is not a malevolent practitioner. She is not superficial or reckless in her approach to patients in the difficult area of end of life care. She is a practitioner who has attempted to deal compassionately with her patients by providing care that she believed to be alleviating of suffering by protecting her patients against the effects of insufficient care, indifference or lack of empathy for patients and their families. 1. Dr Diamond gave oral evidence before us. In answer to questions posed by Mr Marbury, Dr Diamond explained that it had come as a great shock to the practitioner when her practices were challenged as aberrant or incorrect. He explained, because she had shown vulnerability in the past in her prescribing, that it would serve the practitioner well to have another opinion to look at doses and decision making and that this would be a protective factor in the practitioner's practice going forward. 2. While generally Dr Diamond supported the practitioner being able to practise, he noted this should be a staged process with strict review of the practitioner's conditions. 3. We note, understandably given the questions posed to him by the practitioner's lawyers, that Dr Diamond's primary evidence was directed to questions of the public safety, if the practitioner had conditions on her registration. He carefully explained that the end of life prescribing was not a matter within his expertise and he acknowledged that the question of the practitioner's ability to practise safely with conditions on her registration while significant, was not the only matter to be determined by the Tribunal. We find Dr Diamond has a good understanding of all the issues involved in determining appropriate protective orders. 4. Dr Diamond was an impressive witness. His detailed report was of considerable assistance to us. We had no hesitation in accepting Dr Diamond's evidence. His evidence about the practitioner's ability to practise safely (with conditions) is supported by Dr Coleman's views. We accept that evidence. Referees 1. The practitioner relies on a number of referees. These include a very complimentary references from the daughter of a former patient (Deborah Clothier), and sons of other patients (Garry Oughtred and Glendon Unicomb) a reference from a registered nurse and care manager at Opal Oceanview, Mona Vale, a reference from Jennifer Witkamp (position unknown but relevant to Wesley Taylor), Barbara Thomas, registered nurse at Estia, Mona Vale, Karen Patricia Taylor, registered nurse at Seaside Nursing Home, Warriewood, Edwina Vale, registered nurse and facility manager at Oceanview Aged Care Facility, Nathan Collyer, physiotherapist, Narelle Bath, registered nurse, and Dennis Hanmer OAM, JP Vietnam Veterans Peacekeepers and Peacemakers Association of Australia, and an optometrist, Arn Besler. 2. The thrust of these referees' letters is that the practitioner provides exemplary care for her patients, and that she goes the "extra mile" in providing care for her aged patients. We have given considerable weight to the views expressed by these referees. 3. The practitioner also relied on references from two pharmacists. Mr Yehia Ali commented positively of his interaction with the practitioner up to 2015 when he moved interstate. Mr Simon Reinhard, pharmacist also provided a letter in support of the practitioner. He noted the practitioner's diligence with follow up paperwork, and explained that "According to my dispensary computer Dr Silberberg is our top prescribing doctor and she is aware of the issues facing community pharmacy remuneration and her efforts in returning our paperwork in a timely manner greatly helps our cash flow and is greatly appreciated". We did give some weight to Mr Reinhard's evidence, but we discounted his reference because of the clear commercial aspects of his interaction with the practitioner. Discussion and conclusions protective orders Does the practitioner still remain isolated in her practice, and if so, does that present a risk to the public? 1. The practitioner did not give a comprehensive explanation of her present practice in her Reply and statement. That is not to be seen as a criticism of the practitioner who was clearly focussed on her response to the particulars in the complaint. 2. The practitioner gave oral evidence in response to questions posed by Mr Maybury and the panel about how her practice presently operates. 3. The practitioner explained that her present care model presently involves Ms Bowen acting as a nurse practitioner who undertakes the bulk of the normal day to day assessment of patients. Each morning the practitioner and Ms Bowen have a "handover" after the practitioner has checked incoming faxes and results, and discuss anything that needs immediate action. The practitioner said the model is "self-supporting" with Ms Bowen liaising with Dr Norrie and the Accident and Emergency doctor, a psycho-geriatrician and surgeon. 4. The practitioner went on to explain they (presumably Ms Bowen and the specialist) had instituted a model of teleconferencing so that Ms Bowen was less dependent on her. The practitioner went on to explain: She [Ms Bowen] can sign a life extinct certificate and basically my role in any palliative process at the moment would be to just make sure I try and see patients before they die because I'm going to be signing a death certificate for that patient and – but that's the only part I play in the palliative process [transcript 19 February 2019 page 41]. 1. The practitioner explained that, while in the past she may have seen some of her very high care patients every week, she may now only see them once every two or three weeks. She is able to operate in this way because of Ms Bowen's care of the patients. 2. We asked about the practitioner's current prescribing and that of Ms Bowen. She explained: SENIOR MEMBER WROTH Q. Can I take that prescribing at the end of life, Amy's prescribing at the end of life? A. Yes. Q. How is that defined such that she's able to do it in that setting? A. Her scope includes end-of-life palliative management. She's done additional training. She's expanded her scope to extend it. She's become experienced over the many years and I do believe that she uses the same page 2 criteria in establishing that the patient is clearly end of life and will collaborate either with Dr Norrie or the nursing home staff or, if it's things of - or pal care if possible. Sometimes it's not possible because of times and constraints. You can't be leaving a patient in extremis but she will stick very strictly to the guidelines because that's what's within her formulary. Q. And is she only allowed to prescribe S8s within the end-of-life setting? A. No, no. She can do chronic pain management within her formulary. She can reduce doses. She can initiate. She has a very well-correlated management plan where they have to show - they have chronic pain charts. It's not just like with the nurses phone up and say, "Mrs So-And-So needs something for pain other than Panadol," and doctor goes in and writes up some Endone. She goes through a very good definitive process where there's a proper pain assessment and she keeps a - she'll use the Abbey pain scale, her own clinical assessment, not only reliant on that, plus we will very often - she relies on pain. I ask them to keep pain charts as well. Q. So is that system new? That's what's happening now? A. Well, it's part of her - that's how she works within her scope. That's basically how she manages chronic pain within her scope and formulary. [transcript 19 February 2019 p 44] 1. In answers posed to questions by Mr Marbury, the practitioner explained that Ms Bowen can now not only prescribe S 8 drugs, but can order a reduction in dose. This overcomes one of the concerns the practitioner expressed about the restriction on her prescribing rights and the burden the conditions placed on Dr Norrie. 2. The evidence before us discloses that the practitioner works very closely with Ms Bowen. We accept she has contact with Dr Norrie, who also has a therapeutic relationship with her as her long term general practitioner. 3. We find the practitioner continues to have a warm and trusting rapport with Dr Coleman, who she knew well before he was appointed her supervisor from attending continuing professional development seminars and from having mutual patients. We accept his supervisory role has been a benefit to the practitioner, but their interaction will not be as regular if the supervision condition is removed. 4. The practitioner's evidence about the Hammond Care palliative team was generalised. She noted that Ms Bowen consults with that team. It was apparent to us that the practitioner was upset that Hammond Care had rejected her request to act as her supervisor when approached. 5. We remain concerned that the practitioner, who we acknowledge is working in a difficult and demanding area of practice and who is held in high regard by nursing home staff, still remains significantly isolated from her peers, particularly other practitioner's working in end of life care. It was telling to us that although the practitioner relied on a considerable number of referees, she did not produce any reference from a medical practitioner colleague. 6. While we did not doubt the truth of the practitioner's evidence about her current practice, the evidence of the practitioner's interactions with Ms Bowen is not independently corroborated. The practitioner was working with Ms Bowen during the period of the complaint, although she was described by the practitioner as "transitioning" into her nurse practitioner role at the time. When asked why Ms Bowen did not challenge the practitioner's prescribing the practitioner explained that she thought Ms Bowen was too intimidated to do so. We are left to speculate whether Ms Bowen would still unquestionably follow the practitioner's recommendations. 7. We have sought to weigh and balance the evidence of Dr Diamond and Dr Coleman who are satisfied that the practitioner does not present a risk to the public if she is permitted to continue to practise (albeit we note Dr Diamond's caveat that the practitioner should remain subject to stringent conditions to be reviewed on a staged basis) with other matters of concern to us. These matters include the lack of evidence of interaction by the practitioner with other colleagues, particularly those working in aged care end of life practices. We find it was the practitioner's isolation from her peers which contributed in some measure to her aberrant prescribing practices. Overall, we find the practitioner, as a result of these proceedings, is not likely to make the same prescribing errors as in the past. Her future practice would, however, benefit from closer interaction with her peers. Although the practitioner has been subject of a supervision condition, given the nature of her practice, going forward should any supervisor be a practitioner engaged principally in palliative care? 1. As a result of our conclusions set out above, we find that any supervision condition going forward should be by a general practitioner engaged in community aged/palliative care other than Dr Norrie or specialist end of life practitioner operating in the community. Does the practitioner demonstrate insight into her prescribing practices and is she genuine in her remorse? 1. We find that by the time of the hearing the practitioner acknowledged the inappropriateness of her prescribing. We find the practitioner does provide devoted care to a very vulnerable group in our society. 2. We were somewhat concerned that the practitioner still sought to rationalise or justify her prescribing behaviour at the time it occurred to the fact that she did not receive "some sort of feedback along the way" [transcript 18 February 2019 and her statement at para 44 set out earlier in these reasons]. 3. The practitioner in her oral evidence showed insight when questioned about specific patients. When asked about Patient B she acknowledged her erroneous belief that, by endeavouring to use a hospital avoidance model and to comply with the patient's wishes, she had done "basically whatever it took to guarantee him symptom relief, even if it meant stepping outside the guidelines". We see this as the type of conduct described by Dr Howle as a practitioner lacking objectivity. She also made appropriate concessions about her presumptive prescribing. 4. The practitioner fully acknowledged her unacceptable prescribing for Patient L. She accepted that her prescribing had caused side effects. She explained she was devastated by the harm she had caused this patient. We accept her evidence on this topic and that she demonstrates genuine remorse for harm caused to this patient. 5. The practitioner's evidence in response to questions posed to her about clinical notes was inconsistent. A question was directed to the practitioner about her clinical notes in re-examination and whether other general practitioner's working in nursing home "cut and pasted" their clinical notes into the nursing home notes. She said: A. I regret to tell you that most other doctors, as bad as my notes are, I think you will find that they are above the standard. I have never seen anybody write notes anywhere of the calibre that I do. [transcript 19 February 2019 p 34] 1. The practitioner was also critical of the nursing notes because the nurse responded to a "tick a box" or "mightn't recall everything and is writing the same thing for just about everything". [transcript 19 February 2019]. She also described nurses writing by "rote". 2. When speaking about one the reasons she had approached Dr Coleman to be her supervisor, the practitioner explained his notes are scrupulous and the practitioner felt he would help her address clinical note keeping issues. 3. Overall, we are satisfied that the practitioner has come a long way since the s 150 proceedings. She now acknowledges her prescribing errors, harm caused to at least two patients, and her misguided thinking. The practitioner acknowledged the harm she caused was not recognising that some of the symptoms and signs she was treating (e.g. twitching) were harmful side effects of the escalating doses she was prescribing. We find she demonstrates considerable insight. However, we had some lingering doubts that the practitioner has gained complete insight into her practices. We find she still endeavoured to justify, at the time it occurred, at least some aspects of her wrongful prescribing to the lack of careful checking by other professionals, rather than fully accepting her responsibility for all her clinical decisions. Her evidence criticising other professionals' record keeping overlooked her substantial failure to comply with the Health Practitioner Regulation (NSW) Regulation 2010 (repealed) (the regulation). Will the imposition of conditions, with subsequent review by the Council adequately address all the necessary elements of a protective order? 1. As we discuss below, we are not satisfied that to continue the existing conditions on the practitioner's registration in the circumstances of this case will properly or adequately address all the elements of an order made in a protective jurisdiction. Is it appropriate or necessary to cancel the practitioner's registration to reflect the serious departure from standards her repeated prescribing methodology during the period 2015 and 2016 represented? 1. There is no doubt, given the practitioner's concession that her conduct constitutes professional misconduct, and our independent finding of professional misconduct, that an order could be made cancelling the practitioner's registration. 2. However, as well established by authority, a finding of professional misconduct does not necessarily mean a practitioner's registration must be cancelled. 3. In our evaluation of the practitioner's conduct we have found gross breaches of appropriate prescribing for the end of life patients the subject of the complaint. That aberrant conduct of itself could warrant cancellation of the practitioner's registration. Cancellation would send a strong deterrent message to health professionals. It would uphold the reputation of the profession, particularly those working with vulnerable, frail and elderly patients. Those patients and their families need to be able to place absolute trust and confidence in the practitioners who treat them or their family members. 4. We balance against those matters the practitioner's concessions of her wrongful conduct, her compliance with the conditions imposed by the Council and the high regard with which she is held by many in the community. We accept the evidence of Dr Diamond that the practitioner does not currently pose a risk to the public if stringent conditions are placed on her registration with a staged review of those conditions. 5. We are exquisitely conscious that the practitioner, who is currently, working with Ms Bowen, provides care for some 200 aged patients and has done so without complaint since the conditions were imposed. These are strong factors mitigating against cancellation with its concomitant need to re-apply to the Tribunal for a re-instatement order after any prohibition made under s 149C (7) of the National Law expires. 6. Balancing the conduct which occurred in 2015/2016 with the practitioner's present level of insight and remorse, her current care of many vulnerable patients, and compliance with conditions, we do not consider cancellation of her registration is an appropriate protective order. If cancellation is not appropriate, does suspension of the practitioner's registration reflect her departure from accepted standards, offer sufficient deterrence to other practitioners and uphold the standard of the profession? 1. We have earlier set out several of the authorities dealing with the principles to be applied when making orders in a protective jurisdiction. 2. We find that, in this instance, the departure from the standard to be expected of a practitioner of this practitioner's many years of experience and expertise was significant and serious. Her conduct caused harm to her patients. The conduct requires condemnation. An order suspending the practitioner's registration will send a strong message of deterrence and uphold the standard of the profession. While Ms Mathur urged us to impose a short period of suspension, if we came to the view suspension was an appropriate order, we conclude, because of the serious nature of the conduct, involving 14 patients over significant period of time, a period of six month's suspension is appropriate. 3. We are satisfied that the practitioner's return to the profession will be enhanced by continuation of her therapeutic relationship with Dr Diamond. During her suspension she can hopefully receive treatment for her depression or other diagnoses. It will clearly be of benefit if she maintains attendance at relevant continuing professional development courses, particularly any courses relevant to prescribing for aged patients. The period of suspension will enable her to seek out an appropriate supervisor to have in place when her suspension is lifted. 4. We are conscious that it appears, conjointly with Ms Bowen, the practitioner has the responsibility for the care of a significant number of aged care patients. Accordingly, we propose to stay our order suspending the practitioner's registration coming into effect for a period of three weeks from the date of this decision. This will enable alternate arrangements to be put in place for another general practitioner to take over, at least while the practitioner's suspension is in place, care of patients admitted to nursing homes under the care of the practitioner. If suspension is the appropriate order, what conditions if any, going forward are necessary to protect the public? 1. We have given very careful weight to Dr Diamond's opinion that if the practitioner is to practise her registration should be subject to stringent conditions with a staged review of those conditions. We are conscious that on the expiration of six months, the practitioner's registration will be automatically restored. We are satisfied conditions to then come into effect must include a restriction on the prescribing of S 8 drugs and midazolam. In making this determination, we have had regard to the hearsay evidence that Dr Norrie has found his role in prescribing S 8 drugs burdensome. However, the practitioner's evidence of Ms Bowen's formulary, including her availability and ability to prescribe S 8 drugs, and her liaison with the Hammond Care palliative care team ameliorates to a significant degree our concern of any substantial adverse impact on patient care. 2. Although the practitioner has shown her clinical records to Dr Coleman, that has occurred in circumstances where the practitioner herself selected the records provided. To ensure the practitioner will comply with the record keeping requirement in the regulation now in force we find she should be required to be subject to an audit of her records six months after she resumes practice. 3. We also find the practitioner should continue, until deemed unnecessary by the Council, having the benefit of a supervisor. The practitioner has no doubt benefited by the supervision she has received from Dr Coleman. The Tribunal takes this opportunity to record and commend the public service provided by Dr Coleman in making time available in his busy schedule including public hospital commitments, to meet with the practitioner and report to the Council. 4. It was clear to us from Dr Coleman's evidence that he is of the view that his supervisory role is no longer necessary. We find it would be appropriate and useful for the practitioner to still have the benefit of a supervisor with expertise in end of life prescribing. 5. We raised with Dr Diamond whether it would be appropriate, in view of his diagnosis, for the practitioner to be reviewed by a Council appointed psychiatrist who could report to the Council. 6. We are satisfied that the practitioner will continue to attend appointments with Dr Diamond and follow his advice. In these circumstances we have concluded that it is not reasonable or necessary that we require the practitioner to attend upon a Council appointed psychiatrist. Costs 1. Ms Mathur did not seek to be heard on the question of costs. We have the power to make a costs order under Cl 13 of Schedule 5D of the National Law. 2. The HCCC seeks an order that the practitioner pay its costs of and incidental to these proceedings. The principles to be applied in considering whether to make a costs order are well known (see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11; Health Care Complaints Commission v Philipiah [2013] NSWCA 342). 3. We are satisfied these proceedings were only necessary because of the conduct of the practitioner. In those circumstances, we find it is appropriate that the practitioner pay the costs of the Health Care Complaints Commission as agreed and failing agreement as assessed. ORDERS 1. Dr Judith Silberberg ('the practitioner") is reprimanded. 2. Subject to Order 3, the practitioner's registration is suspended for a period of six months. 3. The operation of Order 2 is stayed for 21 days from the date of this decision. 4. On the expiration of the practitioner's suspension her registration is subject to the following conditions: 1. The practitioner shall not possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined in the Poisons and Therapeutic Goods Act 1966 (NSW) 2. The practitioner shall not possess, administer or prescribe midazolam in any form. 3. The practitioner shall practice under Category C supervision in accordance with the Medical Council of NSW's ("the Council") policy (as varied from time to time) and as subsequently determined by the appropriate review body. 4. The practitioner and her supervisor (who shall be a general practitioner engaged in providing "end of life care" to patients) shall meet not less than bi-monthly. 5. The practitioner shall prior to her first meeting with her supervisor provide to the supervisor, or any substitute supervisor, a copy of the Tribunal's decision. 6. The practitioner shall give any necessary authority and/or consent to the Council to exchange of any information between the Council and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 1. The practitioner shall submit to an audit of her medical practice by a random selection of her medical records by a person or persons nominated by the Council as follows: 1. the audit is to be held within six months after the expiration of the practitioner's suspension and subsequently if required by the Council; 2. the auditor is directed to assess the practitioner's compliance with good medical record keeping standards and legislative requirements; 3. the practitioner is to authorise the auditor to provide the Council a report of the auditor's findings; 4. the practitioner shall meet all costs associated with the audit and any subsequent audit and reports. 1. The Medical Council of NSW is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). In the event that the practitioner lives other than in NSW s 125 to s 127 of the National Law are to apply and a review of these conditions can be conducted by the Medical Board of Australia. 2. The practitioner shall pay the cost of the Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement as assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 15 April 2019