Health Care Complaints Commission v Malouf [2019] NSWCATOD 164

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Malouf [2019] NSWCATOD 164 Hearing dates: 8 – 10 April 2019 and 2 May 2019 Date of orders: 25 October 2019 Decision date: 25 October 2019 Jurisdiction: Occupational Division Before: N Hennessy ADCJ, Deputy President Dr K Keenan, Senior Member Dr J Fogarty, Senior Member S Lovrovich, General Member Decision: (1) Dr Malouf is reprimanded. (2) Dr Malouf's registration as a medical practitioner is suspended for 6 months from the date of publication of this decision. (3) When the period of suspension has expired, Dr Malouf is to be subject to the following condition: Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) and any substance listed in Schedule 4 appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW), except to prescribe on a medication chart/medical record for any patient who is under his immediate care at any residential aged care facility. (4) The Health Care Complaints Commission is to file and serve any submissions as to additional conditions that it says should be imposed 28 days from the date of this decision, together with submissions as to whether that issue can be determined without a hearing. (5) Dr Malouf is to file and serve any submissions in response to the Health Care Complaints Commission's submissions within a further 28 days together with submissions as to whether that issue can be determined without a hearing. (6) The Medical Council is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW). (7) If Dr Malouf ceases to reside in New South Wales, the conditions are to be reviewed in accordance with ss 125 to 127 of the Health Practitioner Regulation National Law (NSW). (8) Dr Malouf is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: MEDICAL PROFESSION – professional misconduct – where doctor prescribed drugs of addiction including alprazolam and restricted substances including diazepam to twenty patients – where doctor failed to obtain an authority as required under the Poisons and Therapeutic Goods Act 1966 (NSW) to prescribe drugs of addiction – where each patient was enrolled in an Opioid Treatment Program – where at least 14 patients were drug dependent – whether conduct constitutes unsatisfactory professional conduct – whether conduct constitutes professional misconduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Dr Gow [2008] NSWMT 2 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Texts Cited: Adam Bakker and Emmanuel Streel, "Benzodiazepine maintenance in opiate substitution treatment: good or bad? A retrospective primary care case-note review" Journal of Psychopharmacology 2017, Vol 31(1) 62-66