Health Care Complaints Commission v Abdalla - [2020] NSWCATOD 20 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Abdalla

[2020] NSWCATOD 20

NCAT Occupational|2020-02-04|Before: Dr J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-02-04

Before

Dr J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

5 to 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 Registrar is requested to advise the Medical Council of NSW as soon as practicable of Orders 1, 2 and 3 of these orders. 8. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) save and except any costs associated with Complaint Three of the complaint dated 11 July 2019. Catchwords: PROFESSIONS AND TRADES - health care professional - medical practitioner - where practitioner admits inappropriate prescribing and also admits failing to maintain proper medical records - where practitioner admits his conduct constitutes professional misconduct - costs - where complaint the practitioner is guilty of improper or unethical conduct by failing to disclose financial interest in pharmacy to his patients is withdrawn shortly prior to the hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Suri [2016] NSWCATOD 54 Medical Council of NSW v Lee [2017] NSWCA 282) Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280 Quach v Health Care Complaints Commission [2015] NSWCA 282 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 Spicer v NSW Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep) Stena Rederi Aktiebolag v Austal Shipping Sales Pty Ltd [2007] FCA 1141 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Hany Abdalla (Respondent) Representation: Counsel: Ms D New (Applicant) Mr P Aitken (Respondent)

[3]

Introduction

Dr Hany Abdalla (the practitioner) is both a registered medical practitioner and a registered pharmacist. In 2002, prior to obtaining his qualifications as a doctor, he acquired part ownership of a pharmacy in a western Sydney suburb. In 2006 he became the sole owner of the pharmacy. In 2008 the practitioner commenced general practice in a practice located next to the pharmacy. In January 2016 the practitioner's prescribing of various Schedule 8 drugs of addiction attracted the attention of the Pharmaceutical Regulatory Unit (PRU) of NSW Health. In July 2016 the PRU made a complaint to the Health Care Complaints Commission (HCCC) about the practitioner's prescribing. The complaint was supported by an extensive report.
By complaint dated July 2019 the HCCC commenced disciplinary proceedings against the practitioner in this Tribunal under Part 8 of the Health Practitioner Regulation National Law (the National Law). Separate proceedings have been commenced against the practitioner in his capacity as a pharmacist. Those proceedings have not yet been heard and determined.
An Amended Complaint was tendered by the HCCC on the first day of the hearing without objection by the practitioner. A complaint (Complaint Three) of improper and unethical conduct under s 139B(1)(l) of the National Law, which asserted a conflict of interest in the practitioner owning the pharmacy located adjacent to his former place of practice, was withdrawn.
Three categories of complaint are alleged against the practitioner in the Amended Complaint. They may be broadly summarised as follows: 1. Inappropriate prescribing of Schedule 8 drugs for 13 patients. We refer to this as "the prescribing complaint". 2. Failure to keep records in accordance with the appropriate regulation. We refer to this complaint as "the record keeping complaint". 3. A complaint that the practitioner's conduct constitutes professional misconduct as defined in s 139E of the National Law.
The practitioner admits the prescribing complaints. He also admits the record keeping complaint and significantly, that his conduct constitutes professional misconduct.
For reasons that follow, we conclude the practitioner is guilty of professional misconduct. While that finding could lead to protective orders requiring the cancellation of the practitioner's registration, as we will later explain, we conclude that the practitioner should be reprimanded, that his registration be suspended for a period of six months, and on resumption of practice that conditions be placed on his registration. The conditions may be reviewed by the Medical Council of NSW (the Council).

[4]

Background

The practitioner completed a Bachelor of Pharmacy degree at the University of Sydney in 2000. He was first registered as a pharmacist in January 2002.
In 2002 the practitioner purchased a pharmacy in the western suburbs of Sydney with another pharmacist. In 2006 the practitioner's purchased his co-owner's interest in the pharmacy. The practitioner asserts that he worked as a pharmacist in the pharmacy from 2002 to 2008. However, he states that on commencing work at the western Sydney practice he did not work in the pharmacy other than in a management role.
In 2004 the practitioner completed Bachelor of Surgery/Bachelor of Medicine degrees, also at the University of Sydney.
In 2005 the practitioner undertook an intern year at Liverpool Hospital, and then worked as a Resident Medical Officer at Nepean Hospital in 2006.
The practitioner thereafter worked in a general practice in the lower Blue Mountains while undertaking General Practice Training. In 2008 he obtained Fellowship of the Royal Australian College of General Practitioners.
In 2007 the practitioner commenced practising as a contractor at the western suburbs practice (the practice) and remained in that practice until 2017. The practice was located next to the practitioner's pharmacy. The practitioner asserts the pharmacy "had its own distinct shop front". The pharmacy premises were rented from the owners of the practice. The pharmacy, in accordance with legal requirements, had the practitioner's name on the door and at the dispensary. The practitioner sold his interest in the pharmacy in 2019. He asserts the sale was at a loss because the practice owners refused to extend the lease.
The practitioner says that his father was one of three proprietors of the practice, but he was employed as a contractor. He and other practitioners were remunerated on a percentage of billings basis.
The practitioner asserts that the practice was a busy one comprising ten general practitioners and a number of allied health professionals. He asserts that he was consulted by young families and a large number of migrants and refugees from countries such as Iraq, Afghanistan, Sudan, Lebanon and Turkey. He asserts these latter patients consulted the practice for "issues including depression, post-traumatic stress disorder, musculoskeletal conditions, and chronic pain management". The practitioner is fluent in the Arabic language and was able to converse with many patients in that language.
In May 2016, after an interview with officers of the PRU, the practitioner voluntarily surrendered his Schedule 8 prescribing rights.
On 1 August 2016 the Council conducted proceedings under s 150 of the National Law. The Council determined that the practitioner's registration should be subject to a condition that he not possess, supply or administer any Schedule 8 or Schedule 4D drug, and that he authorise consent to exchange of information between the Council, Medicare Australia and the PRU. The conditions also included a condition that the practitioner authorise the Council to notify the practitioner's then employer, or any future employer, of any breach of the conditions.
The practitioner currently practises as a solo general practitioner in a different practice which he has established. The practitioner's new practice is conducted in a purpose built facility which he owns. The practitioner's oral evidence is that the building has consulting rooms on the ground floor, and allied health professionals rent rooms on the first floor. The premises are designed to have a pharmacy on site.
The practitioner asserts that he has endeavoured unsuccessfully to recruit other general practitioners to work in his present practice.

[6]

Relevant law

The principles relevant to disciplinary proceedings under the National Law are uncontroversial, and well-known.
The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.
Unless a provision in the National Law is in conflict with, or repugnant to the practice and procedure provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), those provisions apply (see Medical Council of NSW v Lee [2017] NSWCA 282). The guiding principle of the NCAT Act requires the just, quick and cheap resolution of the real issues in dispute between the parties. Each of the parties to the proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle (see s 36 of the NCAT Act). The National Law requires proceedings should be dealt with expeditiously (see cl 11 of Schedule 5D).
The primary purpose of protective orders made at the conclusion of proceedings is to protect the public not to punish the practitioner (see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40).
The HCCC bears the onus of proof in these proceedings. These disciplinary proceedings are brought under Part 8 of the National Law. The complaints assert the practitioner is guilty of unsatisfactory professional conduct under s 139B (1)(a) and (b) of the National Law. Section 139B(1)(a) and (b) provide as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (a) Conduct 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
The HCCC also asserts that the practitioner is guilty of professional misconduct. Professional misconduct is defined in s 139E of the National Law as follows: 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.
It is also useful at this point in our reasons to set out the summary of the scheme and underlying principles relating to protective orders explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 as follows: The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include 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 to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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.
It is appropriate that we also note that the gravity of professional misconduct, if established, is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630).

[7]

The admitted complaints

Prior to the filing of the Amended Complaint on the first day of the hearing, the practitioner admitted the majority of the particulars of the complaint asserted by the HCCC with the exception of the three particulars relevant to the prescribing complaint, and Complaint Three (the unethical conduct complaint).
At the commencement of the hearing, Mr P Aitken, counsel for the practitioner advised that his client admitted all the particulars of the Amended Complaint.
In these circumstances it is unnecessary that we make detailed findings about each patient and the particulars asserted by the HCCC. Rather, our focus at the hearing and in these reasons was to consider the veracity or otherwise of the practitioner's explanations of his conduct at the relevant time, his present circumstances, and any risk to the public in the future. We also considered issues relevant to the reputation of the profession and deterrence to avoid other practitioners engaging in like conduct.
The facts of this case, and other so called "wrongful prescribing cases" coming before this Tribunal, highlight a tragic and significant problem for many persons in the Australian community. These persons are the cohort of patients, many of whom suffer chronic pain, and who may, or often have, become addicted to opioids obtained by them legally on prescription from a medical practitioner. The adverse consequences of addiction to these drugs for the patients, their families and the community cannot be underestimated. The problems associated with prescribing such drugs of addiction on a long term basis have been well recognised for some years by responsible professionals. Those professionals engage in holistic alternate treatment regimens for such patients to address chronic pain issues. This approach obviates or minimises the potential for opioids to be used for illicit purposes and importantly provides best practice for the patients' care.
The focus of this hearing was on the appropriate protective orders to be made. In determining that exercise, we have been conscious that the orders we make are not to punish the practitioner. While we have had regard to the outcomes in other "wrongful prescribing cases" our decision in this matter is based on our evaluation of the clinic records of the patients, and the practitioner's evidence both in his statements and oral evidence.

[9]

Patient A

This patient was treated by the practitioner who prescribed S8 drugs (Oxycondone on 33 occasions, Fentanyl on 80 occasions and Buprenorphine) between December 2011 and November 2015. As with the other patients, the practitioner admits he did not prescribe for an appropriate therapeutic purpose, that he did not properly assess the patient or conduct an adequate examination before prescribing. The practitioner also admits he did not implement a pain management plan and that he prescribed to a drug dependent person without proper authority.
In reaching our findings that the admitted particulars of Complaint One are established, we accept and rely on the opinions expressed by Dr Deed, the expert relied on by the HCCC.
Dr Deed was critical of the practitioner's prescribing for each of the patients, finding it significantly below the standard reasonably expected.
Dr Deed comments adversely on the practitioner's prescribing for Patient A. While he did not find the practitioner's conduct in prescribing Tramadol for this patient, who the practitioner treated between 1 December 2011 and 11 November 2015, significantly below the standard expected, he is critical of the practitioner's prescribing of Oxycontin 80mg SR which commenced from 6 May 2011. Among the matters that Dr Deed notes are the fact the practitioner failed to or did not record any enquiry about substance abuse disorders. He observed that Oxycontin, when combined with the Tramadol prescription, meant the patient was receiving three times the guideline recommended dose (at which level specialist pain management or addiction specialist advice should be sought).
Dr Deed is also critical of the practitioner's prescribing of Oxycontin for Patient A. He also notes that the patient continued to be prescribed "patches" which should have raised concerns about additional prescribing and checking via the Doctor Shopping line. He notes that the practitioner failed to contact NSW Health to obtain legal authority to prescribe opioids to this patient. He further notes that the practitioner increased the patient's dosage of Oxycontin on 13 September 2011 "again without appropriate history, examination management planning or generation of another referral to a pain specialist".
Dr Deed is extremely critical of the practitioner's prescribing of Fentanyl patches for this patient. In responding to the question "Was it appropriate for Dr Adballa to prescribe [named drugs Tramadol 150mg and 200mg SR as well as Fentanyl 25mch/hr, 50 mch/hr and 75 mcg/hr]", the expert explains that the prescribing of Fentanyl 75mcg/hr on 27 December 2013 at the same time as Tramadol 200mgs SR bd "that this higher dose opioids was at a level of 385 MEDs (morphine equivalent dose of 385mg of morphine) a day now exceeding the recommended daily MED by an order of almost four (4)".
Dr Deed explains that a patient receiving a combination of opioids exceeding 100mg per day carries an 8.9 fold risk of overdose and a two fold increase in the risk of death.
We find Dr Deed's comments about the patient's drug seeking behaviours, and the practitioner's response to such behaviours telling. Dr Deed explains: This patient did exhibit drug seeking behaviours that are documented many times in the clinical records. There are instances where Dr Abdalla acted inappropriately on a background of obvious drug seeking behaviours such as the patient claiming lost scripts etc with Dr Abdalla repeatedly at times responding to re-issue scripts earlier than required. At no point in the notes is there generation of referrals to a pain specialist or a record of a telephone call or consultation with a colleague to assist managing this patient. There is no mention of contact with the Doctor's shopping line. There is no record of consideration of referral to a methadone support service.
Patient A's records disclose many "red flags" that indicated this patient was a drug seeking patient. On 9 October 2011, another practitioner noted the patient's past history, and that the patient was asking for addictive medication. That practitioner refused to prescribe. Two days later the practitioner prescribed Tramadol and Oxycontin 80mg. In February 2012 the practitioner noted in the medical records "hard luck story again" and under the heading "Management" wrote "last script", but again prescribed Oxycontin.
The practitioner continued to prescribe for Patient A throughout 2012 and 2013 albeit switching him to Fentanyl patches. On 23 August 2013 the practitioner wrote a private script for the patient after the patient claimed his bags were stolen at the airport and noted "never to come back again".
Patient A continued to attend the practitioner and obtain prescriptions for Fentanyl patches. In his notes of 29 October 2013 the practitioner recorded under "History" "cellulitis of both arms and legs. Boils on surface? IVDU" and under the heading "Management" noted "can't supply to S8 addict".
On 3 April 2014 the patient records disclose another practitioner (Dr K) who saw the patient, discussed his medications with the practitioner. On 8 April 2014 the patient re-presented to the practitioner and claimed to have had his prescription stolen. The practitioner's notes reveal "told him to leave as patches are his responsibility not mine. Can go to ED if not happy not supplied". On the same day Dr K records telling the patient she could not prescribe. Dr K also notes "talked to [the practitioner]" "pt has presented with this same scenario many times before". On 28 April 2014 the practitioner again prescribed Fentanyl 75mg for the patient.
The practitioner continued to prescribe Fentanyl for Patient A until November 2015 when he received information from Westmead Hospital that the patient had overdosed on heroin.
In his Reply the practitioner says it is with the "hindsight, knowledge and understanding" he has now obtained from courses and reading, that he acknowledges he did not carry out a proper physical examination of this patient. He agrees he did not implement a plan for the management of the patient's pain. He says at the time of prescribing he thought he was prescribing medications for appropriate clinical purposes.
In his oral evidence in chief the practitioner explained that at the time of prescribing for this cohort of patients he believed it was appropriate to prescribe Fentanyl patches, because the opioid was only released steadily over an hourly rate, with little chance of extracting or abuse, as compared to tablets. He explained, because the medication was steadily released a patient did not experience "peaks and troughs". He said it was only at his interview with the PRU in early 2016 that he recalls being told about how Fentanyl could be abused. He also said that, at the time of prescribing, he thought the "doctor shopper" hotline would advise the practice if there was a concern a patient was a drug seeker rather than there being a need for him to contact the hotline. The practitioner said at the time he changed Patient B onto Fentanyl he had regard to information from drug company representatives who were promoting Fentanyl. He also said that he wrote private scripts, in the case of one patient, because the Red Cross paid for the patient's prescriptions as the patient, a refugee, was ineligible for the PBS. He also said he was unaware he needed to obtain an authority from NSW Health to prescribe for a drug addicted or drug dependent patient.
In answers given to questions posed in cross-examination, the practitioner agreed that the patient's hospital records may have been an indicator of drug dependent behaviour, but said he failed to take account or notice the records and took the patient "at his word". He denied the patient saying he had lost patches in the washing was an indicator of drug dependency. The practitioner claimed that he did not recognise drug seeking behaviour. He admitted he was led by the patient, and that he did not, at the time, see he was fuelling drug dependent behaviour.
The practitioner acknowledged it was possible he may have had a discussion with another doctor in the practice about this patient.
We were simply unable to accept the practitioner's evidence that he failed to recognise Patient A was a drug seeking patient. We were unable to accept his explanation about the patient's cellulitis and intravenous drug use. His statement and answers in cross-examination that he has only acquired insight into this and other patients with hindsight and as a result of courses he has undertaken, are inherently unbelievable and are not supported by the patient's clinical notes.
As we noted at the commencement of our discussion about this patient there were "red flags" which would have alerted, and did alert other practitioners in the practice, that this was a drug seeking, drug dependent patient. The practitioner's own notes, examples of which we have extracted above, clearly disclose the practitioner did not believe this patient's stories, yet he continued to prescribe.
The practitioner's lack of credit on this issue, impacts on his credit generally including the weight we can give to his professed insight, and his assertions of changes to his professional practice.

[10]

Patient B

The practitioner prescribed regularly for this patient, who was born in 1970, and was a refugee from Iraq. The practitioner makes admissions in similar terms to those made in respect of Patient A about the particulars of the complaint. The practitioner admits he prescribed Fentanyl and Tramadol to the patient between November 2012 and March 2016. In the period 21 April 2015 to 19 March 2016 the drugs were provided on a private script. The practitioner asserts the use of a private script was not to avoid detection, but to make the patient exercise care and not lose his prescriptions.
Dr Deed is similarly critical of the practitioner's judgment in respect of his treatment of Patient B. He is extremely critical of the practitioner's prescribing of Fentanyl patches for this patient. He does, however, note that the practitioner made an appropriate psychiatric referral for the patient but he records there was no action by the practitioner on Red Cross reports or a discharge summary received from Auburn Hospital. Again, Dr Deed notes the problem with the practitioner prescribing both Fentanyl patches and Tramadol in combination.
We note that this patient's records also disclose facts indicating drug abuse. Although the practitioner says he had "misgivings" about the patient, he gave him the benefit of the doubt as he "did not suspect [Patient B] was a drug seeking patient".
Patient B's notes contain a detailed report from a case worker for the Red Cross who was supporting the patient. The Red Cross notes record that "Hospital staff stated client had injected fentanyl for his back pain". In his oral evidence the practitioner said he was unaware at the relevant time of the ability of patients to abuse Fentanyl by injection and said he relied on a sales representative's information about Fentanyl. As with Patient A, the records for this patient disclose other practitioners in the practice recorded concerns about the patient in the notes. In particular, we note that another practitioner recorded on 20 October 2013 "noticed Durogesic [Fentanyl] patches was prescribed more frequent than it should be".
On 13 March 2014 the practitioner's father saw Patient B and refused to provide a requested script for a Fentanyl patch but the following day the practitioner wrote a prescription for Fentanyl for Patient B. Again, in April 2014, on two occasions the patient was seen by the practitioner's father. On one visit (22 April 2014) the practitioner's father refused to supply a patch prescription. The notes record a discussion about dependence and pain clinic advice. By May 2014 the practitioner recorded "need to think about stopping". However, he continued to prescribe Fentanyl for this patient until March 2016 when the patient is noted to be travelling to Iraq.
In his cross examination, the practitioner conceded he knew Patient B was seeing another practitioner in the area. He denied that he had recognised this patient was drug dependent at the relevant time. He maintained that he treated the patient for his chronic pain, but his practice was not the best practice. He explained that when he found out the patient had injected Fentanyl in 2013 this had not raised concerns. He agreed he had forward dated scripts. He agreed that he could have refused to prescribe rather than providing private scripts.
As with Patient A, we were unable to accept the practitioner's explanation that he was naive and trusting and this was why he did not act on the clear indications in notes from other practitioners, including his father, and in particular the Red Cross notes. We agree with the submission of counsel for the HCCC that the practitioner could only have turned a "blind eye" or been recklessly indifferent to all the evidence available to him at the time of prescribing that this patient was a drug dependent and drug seeking patient.

[12]

Patient D

Patient D was treated by the practitioner between 2008 and December 2015.
The practitioner admits that he prescribed Fentanyl for this patient on 72 occasions on average twice a month in 2012 to 2013 and with increased frequency (three times per month) in late 2014 and 2015. The practitioner prescribed Oxycodone on four occasions in 2012 and Tramadol on four occasions, three of which occurred in 2015.
We pause to note that in his statement, and before the Council's delegates at the s 150 hearing, the practitioner said, at the relevant time, he had no knowledge of the requirement to obtain an authority and that he believed prescribing Fentanyl carried a lesser risk of abuse than other S8 or S4D medications. In his oral evidence he disclosed his knowledge about Fentanyl was obtained from a drug company representative. We find this explanation as well as his explanation that he had no knowledge of the need to obtain the relevant authority from NSW Health difficult to accept, particularly given his pharmacy qualifications as well as his medical qualifications, including his fellowship of the Royal Australasian College of General Practitioners. This is particularly so as the PRU report notes the practitioner applied for an authority for a patient in 2005.
We do however accept his evidence that there was no formal mentoring in the practice from other colleagues. We are unable, however, to accept the practitioner's evidence there was no discussion with him by other practitioners about drug seeking behaviours exhibited by patients. Such an assertion is contrary to at least one entry in the clinical notes. We also accept that part of the practitioner's patient cohort comprised patients with difficult backgrounds such as migrants and refugees and that once the practitioner voluntarily surrendered his S8 prescribed rights, albeit after advice from the PRU, he no longer treated, and was presumably able to exclude drug seeking patients from his practice.
As with Patient A and B there were clear "red flags" in Patient D's notes which should have alerted the practitioner to the patient's drug seeking behaviours. The patient received Oxycodone in December 2009 and on another four occasions that month. That level of prescribing continued until January 2012. The HCCC assert that such a level of usage ought to have indicated to the practitioner that the patient was drug dependent. We agree with that submission.
Patient D's notes reveal that on 1 January 2011 this patient was seen by another doctor in the practice at a time his diagnosis was noted to be "schizophrenia-paranoid" and that there was "a clear drug abuse problem" (emphasised by bolding in the notes). Notwithstanding this note, two days later the practitioner prescribed Oxycontin 80mg and on 14 January 2011 provided the patient with a forward dated prescription.
Of particular significance in this patient's medical record is the recording made by the practitioner on 6 June 2011. On this occasion the practitioner recorded the patient presented requesting Oxycontin because he had "lost box" and that the patient, who was reported as suffering pain, refused an ambulance transfer and "insisted" on Oxycontin. The practitioner noted "finally agreed to give private script on condition that he transferred to another GP". Notwithstanding this entry in the notes, the practitioner did see this patient again in January 2012 when he prescribed Oxycontin 40mg and on 23 January 2012 prescribed a Fentanyl patch 75mg.
On 8 March 2012 the practitioner recorded in his notes of consultation with the patient that he had been taking Oxycontin on a private script from another practitioner. Notwithstanding that knowledge, the practitioner prescribed a 100mg Fentanyl patch. The practitioner continued to prescribe Fentanyl in March and April 2012. However on 2 May 2012 the practitioner noted the patient attended wanting "addictive medicine" and that he was refused a script. But the following day, the practitioner again prescribed a Fentanyl patch.
On 19 October 2012 the practitioner noted that the patient wanted Oxycontin 80mg on private script. Under the heading "Management" the practitioner noted "one last script no more S8". He prescribed 100mcg/h Fentanyl patch. On 15 April another doctor at the practice refused to prescribe further Fentanyl. That doctor noted that the patient left "very angry".
Prescribing by the practitioner for this patient continued with another nine Fentanyl prescriptions until 9 March 2014. At that time the dosage amount was reduced to 75mcg but otherwise continued notwithstanding hospital admissions and refusal of other doctors in the practice to prescribe. The patient frequently asserted he had lost prescriptions or that they had been stolen.
Dr Deed notes that in his answer to question 34 that the clinical records disclose the patient seeking repeat prescriptions of opioids and that some other GPs refused prescriptions. He concludes, however, that the practitioner's conduct did not fall below the standard. We think it is likely there is a typographical error in the report, given Dr Deed's other comments, but if that is not the case, we do not agree with Dr Deed's conclusion.
We are simply unable to accept that the practitioner did not see or recognise the patient's drug seeking behaviours. His own recording in the notes cogently discloses he knew he was treating a drug seeking patient.

[16]

Patient H

This patient was treated for a relatively brief period by the practitioner between September 2015 and March 2016.
The patient's notes disclose back as far as January 2011 that other practitioners in the practice expressed concern about the patient receiving Oxycontin. By April 2014 the notes reveal the patient attending on another doctor at the practice and asking for Fentanyl which was refused.
The patient's notes recorded by another doctor in the practice on 19 May 2015 reveal his regular doctor was in Lakemba but he was seeking Fentanyl, and that he was provided with one patch "but not more". In July 2015 the doctor noted "I told him that I am not going to prescribe anymore I opened the door and asked him to leave … patient was crying, begging …I reluctantly gave his last script - I felt pressured to do so, otherwise I felt unsafe".
In August 2015 another doctor in the practice declined to provide a script for Fentanyl as requested by the patient.
On 3 September 2014 yet another doctor at the practice refused to provide a script for Fentanyl for the patient, but on 21 September 2015 the practitioner provided a script for Fentanyl 50 mcg/h patch.
Significantly, an entry was made in the patient's notes on 23 December 2015 as follows: This patient is under prescription shopping program Should not wright [sic] any prescription of durogesic Every doctor should be alert about his prescription.
Notwithstanding this very clear note, and although another doctor refused supply on 27 December 2015, although the practitioner refused to prescribe Fentanyl on 30 December 2015, he prescribed Fentanyl again on 3 February 2016 albeit at a reduced dose of 12 mcg/h, 1 patch every three days and continued prescribing until March 2016.
Dr Deed's opinion expressed in answer to question 67 in his report is extremely critical of the practitioner, and undermines the practitioner's assertion that it only now with hindsight he has an appreciation of drug seeking behaviours.
Dr Deed said: This patient was known to the OPT at the time prior and during prescribing by Dr Abdalla. This is confirmation that the patient was drug seeking. Dr Abdalla have [sic] many times been presented with clinical records of colleagues which demonstrated drug seeking and at times violent behaviours by this patient. He did not respond appropriately and re-assess the patient [sic] narrative of pains. He did not try to clarify the legality and necessity of ongoing opioid prescribing. Dr Abdalla acted inappropriately to this behaviour.
We agree with and adopt Dr Deed's opinion. Again, against the clear patient records, we cannot accept the practitioner's present position that he acted naively and trusted his patient's stories.

[19]

Patient K

This patient was originally prescribed Oxycontin in February 2010 by the practitioner. Other doctors in the practice refused to prescribe Oxycontin on 14 February 2010 and 26 February 2010. However, also on the same day (26 February 2010) the notes reveal at consultation the practitioner recorded "wants Oxycontin again" and under the heading 'Management" recorded "last script pt agreed no more refills". However, the patient presented again on 9 March 2010 when a similar notation was recorded, but a prescription was provided.
The practitioner continued to prescribe Oxycontin, albeit at a lower dosage, throughout 2010 even when the patient claimed he had lost his medication because his children had thrown out the box. Further excuses about lost prescriptions were made by the patient in February 2011 when he claimed his medication was stolen in a Woolworths carpark. In June 2011 the practitioner forward dated a prescription while noting the patient was using the drug "to [sic] fast". The practitioner also forward dated prescriptions on 18 March 2010, 19 December 2010 and 26 July 2011.
In October 2011 the medical records disclose "finished oxycontin despite two warning about early supply".
On 14 November 2012 the patient presented to another doctor at the practice claiming he was going overseas and asking for Oxycontin. That doctor refused to prescribe. The practitioner continued to prescribe Oxycontin for the patient throughout 2013 although the patient presented too early for a repeat prescription. On 26 September 2013 the practitioner prescribed Oxycontin but noted "given once due to circumstances but never again".
By November 2013 the practitioner changed the patient's opioid prescribing to Fentanyl patches. The practitioner noted on 26 November 2013 that the patient had been using two patches. The practitioner recorded "explained clearly last time and this time logically he would run out of space if he leaves the patches on". By January 2014 the practitioner noted "counselled need to take responsibility for treatment otherwise will not be able to help".
In February 2014 the practitioner recommenced the patient on Oxycontin and in March that year the practitioner recorded that the patient was presenting "5/7 early for oxycontin".
The practitioner was challenged about his stated belief that he did not know at the time the patient had a drug dependency. He maintained that although he was concerned about frequency of prescribing, that this did not, at the time, translate as far as he was concerned, to drug seeking behaviour. He said he believed the patient was seeking drugs too frequently but attributed this to his social situation. He disagreed that his records of 3 January 2014 as well as 11 March 2014 and 20 March 2014 revealed drug seeking behaviour.
At question 95 of his report, Dr Deed opines that the patient was drug seeking and the practitioner did not respond appropriately to this behaviour. He opines that the practitioner's conduct in that regard is significantly below the standard reasonably expected. We agree with Dr Deed's opinion. Again, we find the practitioner's explanation that he did not recognise drug seeking behaviour lacks credibility.

[22]

The record keeping complaint

The practitioner admits that his records in the relevant period did not comply with the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed)(the regulation). He attributes his contravention of the regulation to the pressure of workload he experienced at the western suburbs practice.
We note that Dr Deed states the practitioner's records in relation to Patients A, C and D are "mostly adequate". The expert does not find the practitioner's record keeping for these patients to be significantly below the standard reasonably expected. However Dr Deed opines that all other patient records are significantly below the expected standard and this attract his strong criticism.
Unsurprisingly because of the practitioner's admissions and the manner in which the proceedings were conducted, there was no cross-examination of the practitioner directed to his record keeping in respect of these patients.
Although the practitioner's mentor and character referee, Dr Michael Neuhauser (Dr Neuhauser), did not claim knowledge of the regulation, in his oral evidence he succinctly summarised the areas which the regulation addresses and in particular the requirement that the record contains sufficient information for another practitioner to be able to properly take over the care of the patient.
We agree with and accept Dr Deed's criticisms of the practitioner's record keeping. We are independently satisfied that the practitioner's concessions about his records are properly made. We are satisfied that the record keeping complaint is established in respect of all patients.
As we later discuss, notwithstanding the practitioner's evidence that he has now allocated time in his appointment schedule to properly complete records we were left with some residual concerns on this topic. We do accept the records which were randomly examined by Dr Neuhauser were found to be satisfactory. However, he has only examined 12 patient records and we note the practitioner's evidence that although his diary is organised for 20 minute appointments, he additionally sees "walk in patients" both in the mornings and afternoons for a total of 2.5 hours daily.
Although he states he does not see the same number of patients as he did in the western suburbs practice, we were left with some residual concern about his ability to complete proper records particularly in the context of a solo medical practice for which he has administrative responsibilities. It is for this reason and other concerns we find it appropriate to impose a condition requiring a performance assessment of the practitioner's practice.

[24]

The practitioner's mentor

The practitioner, to his credit, sought assistance from a professional colleague and friend in the context of these proceedings. Dr Neuhauser undertook part of his training at the same time as the practitioner. He has provided both counselling and professional assistance to the practitioner and has maintained a social relationship with him.
In an undated report received by the practitioner's solicitors on 10 September 2019, Dr Neuhauser explains that he has been working with the practitioner since September 2018 "to review his medical practice and implement the necessary changes to restructure his medical approach". He also notes providing counselling to the practitioner in respect of family issues. He states he initially held four weekly meetings with the practitioner and thereafter he met with the practitioner on a monthly basis.
Dr Neuhauser says that he found the practitioner has a sound knowledge and insight into chronic pain management. He attributes this knowledge to the practitioner's "self-directed learning, chronic pain workshops and various prescribing courses, all of which he entered following after [sic] becoming aware of the HCCC complaints".
As noted above, Dr Neuhauser refers to reviewing 12 patient records which were randomly selected. Dr Neuhuaser advocates for the practitioner continuing to practise with his current conditions. He concludes his report noting: The HCCC complaints did highlight deficiencies in Dr Abdalla's approach to chronic pain and I believe that he has extensively upskilled his approach not only to chronic pains but all aspects of his medical practice.
Dr Neuhauser provided a supplementary report received on 28 January 2020 which became Exhibit 2. We also had a character reference received by the practitioner's solicitors from Dr Neuhauser on 20 September 2019. In that letter he provides details of his own experience and practice of medicine. He explains the practitioner has been "greatly affected" by the complaints. He goes on to opine that he believes the practitioner's remorse is genuine.
We commence by noting that Dr Neuhauser is not a mentor appointed by the Council but the mentoring arrangement is an informal one between himself and the practitioner. Dr Neuhauser has been provided with a copy of the complaint and is aware of the matters contained in it. He has provided, commensurate with his own practice and family commitments, support to the practitioner. He agreed in cross-examination that to refer him as a "peer mentor" would be an appropriate descriptor.
We found Dr Neuhauser was a sincere and truthful witness who attempted at all times to assist the Tribunal. He was complimentary about the practitioner's IT skills, and the courses he has undertaken. While we give considerable weight to Dr Neuhauser's opinions we note that he has very limited experience of observing the practitioner on a first-hand basis in his present practice, and has not discussed with the practitioner his records or treatment relating to any of the patients the subject of the complaint. His observations and opinions are necessarily confined and his comments about the practitioner's present patient pain management must be read in light of the fact the practitioner currently cannot prescribe drugs of addiction. Finally, we observe that he also has a friendship with the practitioner and has provided counselling to him on family issues. He has also provided a character reference for the practitioner. This is not meant to be a criticism of Dr Neuhauser. Our comments are to demonstrate that in these circumstances we must carefully weigh his opinions as part of the matrix of evidence before us, including our own assessment of the practitioner, and subject to the reality that Dr Newhauser does not have the obligations of an expert who is bound by the Tribunal's Expert Procedural Direction.

[25]

The practitioner's referees

The practitioner relies on character references from Mr Feras Karem, Dr Mohamed Nasreddine, Mr Ali Alzamily, Ms Issa Rabays, Dr Burak Dinc and Dr Ahmed Saafan.
Mr Karem is a pharmacist who has known the practitioner since university. He knows the practitioner as a person of good character and was surprised by the complaint. Dr Nasreddine, who has also known the practitioner for many years, explains that the practitioner has an excellent reputation in the local community and that the matters in the complaint are "uncharacteristic" of the practitioner. He opines that the practitioner is unlikely to "repeat such actions". Mr Ali Alzamily, who has known the practitioner for many years, attests to the practitioner's patients presenting with "a motivated smile" and says that the practitioner always went "the extra mile to deliver care".
Ms Rabays, in her reference dated 9 September 2019, explains she is a lawyer, a patient and friend of the practitioner. She attests to the practitioner's reputation, and says that the complaints are out of character. Notwithstanding the complaints, Ms Rabays says she continues to have the highest respect for the practitioner.
Dr Burak Dinc is a rehabilitation chiropractor and sports physiologist. In his reference (undated) he explains that he has known the practitioner for five years commencing when he introduced himself to the practitioner and explained about his services. The practitioner has referred patients to Dr Dinc. Dr Dinc explains that the practitioner's patients he shares speak highly of the practitioner. He further explains the practitioner is his family GP and that he trusts him to provide quality healthcare. Dr Dinc says he is aware from discussions with the practitioner of courses he has undertaken and that he is remorseful for what he has done.
The final reference is one provided by Dr Ahmed Saafan. Dr Saafan first met the practitioner when they commenced their medical studies in 1993. He explains that they and their families became close friends. Dr Saafan explains that he attends the practitioner as his GP. Dr Saafan refers to remorse expressed by the practitioner, and his hard work to show he has realised his mistakes by undertaking courses. He explains the practitioner was embarrassed to tell his family about the complaints and is fearful of the outcome of these proceedings on his career.
None of the referees were required for cross-examination. We accept that all the referees have confidence in the practitioner, believe him to be a person of good character and that he is remorseful for his conduct.

[28]

Consideration protective orders

In this case Ms New, counsel for the HCCC, submits that the appropriate protective orders are that the practitioner be reprimanded, that he be suspended for six months and a number of conditions be placed on his registration when the suspension lapses.
Ms New submits that we should not accept the practitioner's evidence that he was naive and took his patients at face value when they asserted prescriptions were lost or stolen, or that he did not recognise drug seeking behaviours. She submits we should infer from the medical records that the practitioner either wilfully disregarded facts before him including other practitioner's observations in the notes, discharge summaries or correspondence referring to drug use, or that he was recklessly indifferent to those facts.
Mr Aitken on behalf of the practitioner notes that the practitioner has made full admissions of his conduct, that it is clear he deeply regrets his failures and has "demonstrated insight, reform and careful reflection on his failings as a practitioner".
Mr Aitken notes the lengthy delay from the PRU report in July 2016 and the institution of these proceedings in 2019 and the effect of those delays on the practitioner. He points out that the practitioner has been permitted to practice with conditions, but without the requirement for any supervision for the entirety of the relevant period. We accept the matters raised by Mr Aitken are relevant and we have taken them into account.
It is further submitted on the practitioner's behalf that the HCCC "invites the Tribunal … to draw significantly more adverse inferences than the respondent submits are available having regard to the evidence of Dr Abdalla". It is submitted that we should exercise great care to focus on what was the practitioner's thinking at the relevant time and to avoid "applying hindsight reasoning to that conduct".
At para 13 of his submissions, Mr Aiken notes a number of instances where he submits we should treat with caution the approach urged on us by the HCCC. We agree that in our evaluative assessment of this complaint it is necessary that we carefully consider each patient's individual records, their presenting condition, the practitioner's prescribing and his explanation for that prescribing. It was for this reason that we extracted, in respect of each individual patient, those parts of the patient records which caused us concern.
In his written submissions, Mr Aitken cautions us about applying two well-known authorities cited in the HCCC's submissions, noting distinguishing features in this matter. Mr Aitken refers to the facts in the well-known decision of Spicer v NSW Medical Board & ORs (Court of Appeal (NSW), 19 February 1981, unrep) noting the case involved a "huge quantity" of drugs of addiction "on the basis of some half-baked therapeutic trial" and the facts in Health Care Complaints Commission v Suri [2016] NSWCATOD 54.
Mr Aitken further submits that the protective orders sought by the HCCC appear to place "undue emphasis" on deterrence, that the orders failed to reflect the lengthy delay which has occurred in prosecuting the proceedings, and the fact the practitioner has been able to practise without supervision and achieve reform and insight.
Attention is drawn in para 27 and 28 of the submissions to a number of authorities and in particular to Basten JA's comments in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 and in particular his Honour's reference to the fact "a protective order should be limited to that which is reasonably necessary to provide the required level of public protection". We accept the principles highlighted in these paragraphs. These principles guide and inform our conclusions.
We have already made findings that, in a number of instances, we could not accept the practitioner's explanations of his beliefs at the relevant time or his denials of knowledge of the legislative requirements regarding obtaining authority to prescribe S8 drugs or the operation of The Doctor Stopper hotline. We find those expressed beliefs to be inherently unlikely in the light of the practitioner's records. We accept, as Dr Safaan explained in his reference, that the practitioner is embarrassed about his past conduct which has been highlighted in these proceedings. But the reality is this practitioner, who is vocationally trained, and additionally had unique pharmacological knowledge because of his degree in pharmacy, prescribed large quantities of opioids for drug seeking patients in particular Patients A, B, D, H, K and L. We were simply unable to accept in the case of those patients that the practitioner only realised his prescribing was inappropriate with the benefit of hindsight.
Our findings concerning the practitioner's statements about his hindsight understanding, and our rejection of his explanations in respect of a number of patients, leaves us with a number of concerns about his future practice of medicine. In reaching our findings we have not ignored the very unfortunate delay from the PRU report and the s 150 hearing to the institution of these proceedings or the fact there are no complaints about the practitioner's present practice before us.
If the practitioner had not made full admissions of the particulars of the complaint, or undertaken the courses he has undertaken, particularly the Monash course, we would have considered it appropriate to order the cancellation of his registration.
We have, on balance, having regard to his admissions and the undertaking of the post complaint courses and the respect in which he is held by his referees, determined that the practitioner should be reprimanded and his registration suspended for six months. Such a protective order recognises the very serious inappropriate prescribing conduct in which the practitioner engaged, upholds the standards of the profession and also acts as a deterrent to other practitioners engaging in like conduct. The prescribing, as noted by Dr Deed, placed at least one patient in a situation of a much higher risk of death from opioid overdose. In the case of Patient B, the practitioner's prescribing thwarted efforts the Red Cross were making to support a very vulnerable refugee. We also find it difficult to comprehend why the practitioner could possibly have thought it appropriate to prescribe for Patient L, a patient he knew had a Naltrexone implant, who was attempting detoxification and had admissions to Capella Lodge.
There was a paucity of evidence before us in the written material about the practitioner's new practice. We heard oral evidence from the practitioner about the financial investment he has made in acquiring land, obtaining relevant development consents for the facility, and the leasing to allied health professionals and two sessional doctors who rent rooms. We also learnt that the planned pharmacy is unable to be opened because the practitioner is the only practitioner practising on the premises. Although there was no corroborative evidence before us, we accept the practitioner's evidence that he has to meet significant mortgage repayments.
We accept the practitioner's evidence that he has advertised widely in an endeavour to attract another general practitioner to the practice but to date has been unsuccessful, except for a short period until September 2019 when the recruited general practitioner left the practice. We have also had regard to the fact that the imposition of a Level B supervision condition will mean the practitioner cannot, while that condition remained in place, practise at his present location. We note that Dr Neuhauser has indicated that the practitioner may be able to practise at his group practice. We accept imposing a Level B supervision condition, while current, is likely to have an adverse financial impact on the practitioner.
We have not dismissed the financial and other imposts involved with Level B supervision raised on behalf of the practitioner. However, notwithstanding no complaints have been raised about the practitioner during the lengthy period of investigation and prosecution of this complaint, there was little evidence, save for that of Dr Neuhauser, to satisfy us that the practitioner's present performance is satisfactory. Clearly, the fact he does not have the right to prescribe drugs of addiction has had the practical effect that he is not able to prescribe for drug seeking patients.
As the panel raised the issue of two practice conditions (a performance assessment and a condition limiting the number of patients to be seen per day) we permitted the parties to provide us with any further submissions in respect of those proposed conditions.
The HCCC supported the making of the two conditions raised by the panel to come into effect on the lifting of the practitioner's suspension (as well as other conditions sought including Level B supervision and a restriction on the practitioner prescribing drugs of addiction).
We have determined that a period of Level B supervision is appropriate. That level of supervision can be reviewed by the Council and may in due course be amended to Level C or removed in its entirety. In the western suburbs practice the practitioner ignored the concerns of his fellow practitioners about prescribing, he was not mentored, nor were there practice meetings. In his present practice, the practitioner does not have the benefit of any structured professional review in the practice. While we accept he has had the benefit of monthly meetings with Dr Neuhauser, we are conscious that arrangement has inherent limitations noting Dr Neuhauser's friendship with the practitioner, his family commitments with two small children, and his role with the local rugby league club as well as his commitment to his own practice particularly having regard to the distance between the two practices.
Submissions received on behalf of the practitioner did not oppose a condition requiring him to undergo a performance assessment. However, it appears to us that the practitioner's agreement to such a condition was primarily predicated on the basis that the practitioner continued to practise as a sole practitioner in his present practice.
In respect of a condition limiting his practice to 30 patients per day, the submissions note that such a condition is not opposed. However the submissions sensibly suggest that the condition should have a qualification in the case of the need to see an extra patient in an emergency situation. We agree with that amendment.

[29]

Costs

It is not in dispute that the Tribunal has the power to award costs (Schedule 5D cl 13). Nor is there any dispute that the practitioner should pay the HCCC's costs of and incidental to the proceedings except in respect of the withdrawal of Complaint Three. This withdrawal occurred essentially at the commencement of the hearing.
The parties' submissions each recite a number of authorities dealing with the principles relevant to costs in proceedings where costs normally "follow the event". We accept the correctness of those authorities and thank counsel for their comprehensive submissions and review of the authorities.
Ms New supports her submissions by reference to authority (Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 and Stena Rederi Aktiebolag v Austal Shipping Sales Pty Ltd [2007] FCA 1141). The submissions also refer to the general principle in matters where costs "follow the event" of awarding all costs to the successful party and caution against apportioning costs on an issue by issue basis. Reference is made to the decision of Brereton J (as his Honour then was) in Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280.
In his submissions, Mr Aitken refers to the discussion in Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [15] which "recognises that a 'clearly dominant or separable' issue may form a proper basis for departing from the general approach not to differentiate between issues and apportion costs (at [7] of the judgment)". Mr Aitken goes on to note that Complaint Three "stood alone" and was, on any view, clearly separable from the other complaints. We agree with that submission. Mr Aitken submits that the practitioner should not bear the burden of the applicant's pre-hearing costs in prosecuting Complaint Three.
Mr Aitken submits that there are two bases on which our discretion could be exercised. First, he submits we could find both parties acted reasonably until the complaint was withdrawn (as a result of the finding of the Joint Expert conclave) or secondly, in pursuit of "the principle that litigants should not be rewarded for injudicious pursuit of an issue with no substance to it".
We also refer to two authorities in determining this application, each being a decision made under the National Law. First, we note the comments of Meagher JA in HCCC v Philipiah [2013] NSWCA 342 as follows: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
We also refer to the re-exercise of discretion by the Court of Appeal in Quach v Health Care Complaints Commission [2015] NSWCA 282. There under the heading "Relevant Principles" Meagher JA said: Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal . In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]- [48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
The HCCC submit that the practitioner should pay all of the costs of the proceedings, including costs associated with the abandoned Complaint Three. It is submitted that Complaint Three was withdrawn only after receipt of a Joint Expert report which was based on late supplementary statement of the practitioner.
We agree with the submissions made on behalf of the practitioner that the HCCC bore the onus of proof of the abandoned complaint, which asserted the practitioner's conduct was improper or unethical because he had a conflict of interest in his ownership of the pharmacy that was co-located to his practice. This required Investigation by the HCCC of the pharmacy's location and signage, or lack thereof, to support the complaint. The practitioner was required to instruct an expert, Associate Professor Vincent Roche to defend the complaint. It is clear from Associate Professor Roche's report dated 19 September 2010 which was in evidence before us, that the pharmacy and the practice had separate front entries. Professor Roche states "I note there was a sign in the pharmacy that notified Dr Abdalla was a proprietor". However, the adequacy of signage was not made clear to the experts until the provision of photographs by the practitioner.
In these circumstances, we are satisfied that the approach advocated by Mr Aitken, that the HCCC should not be entitled to its costs of Complaint Three up to its withdrawal is an appropriate exercise of our discretion. In effect, each party will bear their own costs of Complaint Three. We are mindful that Complaint Three was not subject of findings by us. Our discretion is exercised having regard to the facts before us. This complaint could have been withdrawn earlier with less costs incurred if both parties had acted with diligence (see s 3(d) of the NCAT Act) in investigation or disclosure of the pharmacy's signage and the practitioner's notation on his prescriptions, noting however it was the HCCC that bore the onus of proof.

[30]

ORDERS 1. The practitioner is reprimanded. 2. The practitioner's registration is suspended for a period of six months. 3. Order 2 of these orders is stayed for 21 days from the publication of these reasons and orders. 4. On the expiration of the practitioner's suspension the following conditions are imposed on the practitioner's registration: 1. to advise the Medical Council of NSW ("the Council") in writing not less than seven days prior to changing the nature or place of his practice; 2. not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined in the Poisons and Therapeutic Goods Act 1966 (NSW) and any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2009 (NSW); 3. not to make any application to review his prescribing restrictions with the NSW Health Pharmaceutical Regulatory Unit without the approval of the Medical Council of NSW; 4. to practise under Category B supervision in accordance with the Council's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate review body: 1. at each meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements, as well as record keeping; 2. to authorise the Council to provide proposed and approved supervisor/s with a copy of these reasons for decision. 1. to treat or see in consultation no more than 30 patients in any one day except in the case of emergency; 2. to submit to a Practice based Performance Assessment of his medical practice by a person or persons nominated by the Council. The Performance Assessment is to be held within six months from the date of expiration of the suspension imposed by Order 2 of these orders; 3. to meet all costs associated with the Performance Assessment and any subsequent reports; 4. to authorise and consent to any exchange of information between the Council, Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions; 5. within seven days of commencing any other employment he is to forward evidence to the Council that he has provided a copy of these conditions to the principal of that place of practice; and 6. to authorise the Council to exchange information with any future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 1. While the practitioner's principal place of practice is New South Wales, the Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. If the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, s 125 to 127 of the National Law are to apply, and a review of these conditions can be conducted by the Medical Board of Australia. 3. The Registrar is requested to advise the Medical Council of NSW as soon as practicable of Orders 1, 2 and 3 of these orders. 4. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) save and except any costs associated with Complaint Three of the complaint dated 11 July 2019.

Health Care Complaints Commission v Abdalla

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (16)

Cited By (1)