Health Care Complaints Commission v Alexakis

Introduction

1. On 10 July 2023 the Tribunal found Dr Peter Alexakis (the Practitioner) guilty of unsatisfactory professional conduct and professional misconduct, thereby enlivening the power of the Tribunal to suspend or cancel the Practitioner's registration as a medical practitioner pursuant to s 149C of the Health Practitioner Regular National Law (NSW) 2009 (the National Law).
2. On 28 February 2024 the Tribunal conducted a hearing to determine the appropriate protective orders (Stage 2 Hearing). At the completion of the Stage 2 Hearing the Tribunal reserved its decision. These are the reasons for the orders which the Tribunal makes.

Material before the Tribunal

1. The Health Care Complaints Commission (Commission) filed a volume of documents which compromised a number of publications with respect to prescribing drugs of dependence in general practice (Exhibit S2A1), and referred to some of the documents upon which it relied in the Stage 1 proceedings (Exhibit A1).
2. The Practitioner filed a volume of documents which contained his Stage 2 statement, Medical Council of New South Wales reports of audits of the Practitioner dated 22 May 2018 and 4 December 2019, mentor reports for the Practitioner of Dr Jim Aroney covering the period March 2018 to November 2023, record of continuing professional development courses completed by the Practitioner between 2017 and 2023, a report by Mr Patrick Sheehan, a Psychologist, dated 15 January 2024, five patient references dated between October 2023 and January 2024, four medical professional references dated January and February 2024 and six media articles relating to proceedings in which the Practitioner was involved in the Supreme Court with respect to Patient B's estate and five Medical Journal articles dealing with issues relating to general practitioners (Exhibit S2R1).
3. Exhibit S2R2 contained correspondence between the Practitioner and the Pain Management Team, Westmead Hospital, with respect to Patient A in 2017.
4. The Practitioner gave evidence and was cross-examined.
5. The Commission filed written submission on 31 January 2024. On 6 February 2024 the Practitioner filed written submissions in response and, on 21 February 2014, the Commission filed submissions in reply.
6. At the request of the Tribunal, on 4 April 2024 the Commission filed a list of conditions which it sought in the event that the Tribunal was not minded to grant the relief primarily sought by the Commission, which was cancellation or suspension of the Practitioner's registration. On the same day the Commission filed submissions with respect to the conditions it sought, those submissions making abundantly clear that, by proffering conditions, the Commission was in no way resiling from its primary position.
7. On 12 April 2024 the Practitioner's solicitors informed the Commission and the Tribunal that, provided that the time for him to complete the courses referred to in them, the Practitioner did not object to the conditions which the Commission sought to have attached to the Practitioner's registration if it was not cancelled or suspended.
8. As is not in doubt, although the parties' competing positions raised only a limited range of possible outcomes, the Tribunal is not bound to necessarily accept either cancellation or suspension as sought by the Commission, or conditions as offered by the Practitioner and, in large measure accepted by the Commission if the Practitioner's registration is not cancelled or suspended.

Background

1. As the submissions of both parties confirm, the Tribunal upheld 5 of the Commission's complaints against the Practitioner. In summary those findings were:
2. Complaint 1 - the Practitioner engaged in unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law in respect of all of the particulars alleged concerning Patient A, which, in summary, involved inappropriate prescribing of Oxycodone, Fentanyl, Diazepam and Oxycontin to Patient A between 2008 and 2017, and failed to refer Patient A to a pain management specialist during that period;
3. Complaint 2 - the Practitioner engaged in unsatisfactory professional conduct in that he breached the provisions of the Medical Practice Regulation (NSW) 2008, Health Practitioner Regulation (NSW) Regulation 2010 (both repealed) and the Health Practitioner Regulation (NSW) Regulation 2016 in respect of all the particulars alleged, which in summary involved failure to adequately document important aspects of Patient A's treatment;
4. Complaint 3 - the Practitioner engaged in unsatisfactory professional conduct in respect of particular 3, which in summary involved a failure to observe proper professional boundaries with two specialist medical practitioners engaged in Patient B's palliative care at the Royal Prince Alfred (RPA) and Concord Hospitals. The Practitioner was also found to have billed Medicare for long consultations when long consultations were not justified in view of the low level of clinical complexity;
5. Complaint 4 - the Practitioner engaged in unsatisfactory professional conduct in that he breached the provisions of the Health Practitioner Regulation (NSW) Regulation 2010 (repealed) and Health Practitioner Regulation (NSW) Regulation 2016 in respect of all the particulars alleged which in summary involved failure to adequately document important aspects of Patient B's treatment;
6. Complaint 5 - the Tribunal found the proven unsatisfactory professional conduct of the Practitioner pursuant to the four complaints identified above was sufficiently serious to constitute professional misconduct.

The competing contentions

1. As recorded above, the Commission sought cancellation or suspension of the Practitioner's registration pursuant to s 149C(1)(b) of the National Law. The Practitioner sought that, rather than cancelling or suspending his registration, conditions be imposed on his registration pursuant to s 149A(1)(b) of the National Law. The Practitioner's submissions inferentially invited the Tribunal to reprimand him pursuant to s 149A(1)(a) of the National Law if his registration was not cancelled or suspended.
2. To provide context for the Tribunal's consideration and determination of appropriate protective orders, it is appropriate to set out the conditions which the Commission seeks to have imposed on the Practitioner's registration if it is not cancelled or suspended. The conditions were sought to be imposed pursuant to s 149A(1)(b), (d) and (f) of the National Law for a period from two years from the date of the Tribunal's orders. Section 149A(1)(b) provides for the imposition of conditions, s 149A(1)(d) empowers the Tribunal to order the Practitioner to complete an educational course specified by the Tribunal and s 149A(1)(f) of the National Law empowers the Tribunal to order the Practitioner to seek and take advice, in relation to the management of the Practitioner's practice, from persons specified by the Tribunal.
3. The Commission sought that the Practitioner is: "1 To obtain Medical Council of New South Wales approval prior to changing the nature or place of his practice. To practice only in a group practice approved by the Medical Council of New South Wales where there are at least 2 registered medical practitioners (excluding Dr Alexakis): a. where the patients and patient records are shared between the medical practitioners b. which is an accredited practice. 2 Not to undertake locum positions. 3 Not to conduct home or nursing home visits. 4 Not to treat more than 36 patients in any one day. 5 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). 6 Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 7 To practice in accordance with the current Medical Council of New South Wales' guideline for self-treatment and treating relatives as notified and varied from time to time. 8 To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 9 To nominate an experienced General Practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body: a. at each mentoring meeting the practitioner is to include discussion of the following: i. maintaining boundaries ii. prescribing iii. managing difficult patients b. to authorise the mentor to report, in an approved format, to the Council every 3 months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing c. to authorise the Medical Council of NSW to provide approved mentors with a copy of the decision/s which led to the imposition of this condition. 10 To complete within 6 months of (date of recommencement of practice) the "Palliative Care, the essentials" course organised by the RACGP: a. within 1 month of (date of recommencement of practice) to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned course b. within 1 month of completing the abovementioned course, to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the course c. to bear responsibility for any costs incurred in meeting this condition d. if the "Palliative Care, the essentials" course organised by the RACGP is unavailable, the Practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 2 months from the (date of recommencement of practice). 11 To complete within 6 months of (date of recommencement of practice) the "Ethical Decision Making" course organised by DAVAAR Consultancy a. within 1 month of (date of recommencement of practice) to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned course b. within 1 month of completing the abovementioned course to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the course c. to bear responsibility for any costs incurred in meeting this condition d. if the "Ethical Decision Making" course organised by DAVAAR Consultancy is unavailable, they must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal by no later than 2 months from (date of recommencement of practice). 12 To complete within 6 months of (date of recommencement of practice) the "Safe Professional Boundaries" course organised by DAVAAR Consultancy: e. within 1 month of (date of recommencement of practice) to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned course f. within 1 month of completing the abovementioned course, to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the course g. to bear responsibility for any costs incurred in meeting this condition h. if the "Safe Professional Boundaries" course organised by DAVAAR Consultancy is unavailable, they must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 2 months from (date of recommencement of practice). 13 To complete within 12 months of (date of decision) a tailored education program organised and developed by DAVAAR Consultancy with a focus on professional boundaries: a. within 2 months of (date of decision) to provide to the Medical Council of New South Wales a copy of the education plan for the program for approval b. within 1 month of Council approval of the education plan, to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned program c. within 1 month of completing the abovementioned program, they are to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the program d. to bear responsibility for any costs incurred in meeting this condition e. if a tailored education program organised by DAVAAR Consultancy is unavailable, they must propose to the Council for approval a similar education program to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 2 months from (date of decision). 14 Not to supervise any other medical practitioner or medical student. 15 These conditions may be altered, varied, or removed by the Medical Counsel of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW). 16 Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia. The Tribunal notes the intention of the Respondent to complete the following RACGP courses, and recommends that he do so: a. Self Care for GPs b. Professional in Practice (RACGP) c. SafeScript NSW - new approval management functionality d. Practical Pain Management in General Practice - things I didn't know but wish I had (RACGP)."
4. As their terms made clear, the conditions sought by the Commission were suggested to apply from the time the Practitioner's registration ceased to be suspended if it was not cancelled. As we have indicated above, other than with respect to the time for completion of the courses proposed by the Commission, the Practitioner does not dispute the conditions. The period of 12 months for completion of the courses sought by the Practitioner was based on the number of CPD points required, 46, in order to complete the required courses, 50 CPD points in a calendar year being required in normal circumstances.

Principles governing Stage 2 proceedings

1. A finding of professional misconduct enlivens the power to cancel or suspend a practitioner's registration. It does not mean or imply that the power will be exercised to do either of those things (Health Care Complaints Commission v Karalasingham [2007] NSWCA 267). As is not in doubt the range of protective orders available to the Tribunal in these proceedings embraces suspension or cancellation pursuant to s 149C of the National Law, or lesser protective orders pursuant to s 149A of the National Law.
2. Section 3A of the National Law articulates the objectives and guiding principles of the National Law, and relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other 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; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that - (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example - Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (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. Note - This section is a substituted New South Wales provision.
3. Section 3B of the National Law mandates that, in exercising its jurisdiction pursuant to the National Law, the health and safety of the public must be the Tribunal's paramount consideration (s 3B).
4. Orders are not intended to punish the practitioner, even though they may have that effect, but to protect the public (Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; [1997] 41 NSWLR 630).
5. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21], Basten JA said [citations omitted]: "18 The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Part 8 Div 3. Section 149A(1) confers power to caution or reprimand, or impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. 19 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 a suspension or cancellation. 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, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. 20 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 judgement 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 practice 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 practice medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgement 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 or the language of s 149C(1). 21 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 reregistration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."
6. In Health Care Complaints Commission v Bours (No. 2) [2015] NSWCATOD 80 the Tribunal reiterated at [22] that the power of the Tribunal to cancel or suspend registration is "protective rather than punitive", and referred to the statement by the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] that "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 included 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 the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such conduct operated 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 requisite standard will not be permitted to practice."
7. The Tribunal also referred at [23] to Health Care Complaints Commission v Jane Waddell (No. 2) [2013] NSWMT 2 in which it was said at [106] that: "The common thread throughout reasons for decisions and judgments concerning consequential orders made in this area of law is that the purpose of such orders is centred on protection, not punishment. The primary focus of protection is the public - protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct, and protection from a culture of substandard practice or lacking in professional ethics from which harm may flow. The objective is that the public might actually be protected, and might have confidence in the prudent and competent practice and the ethical conduct of health practitioners, and in the profession generally. The secondary focus is the protection of the integrity of the relevant profession. Indeed, this may reach to the protection of other members of the profession - that they may not be tainted by a lack of sanction of colleagues who have failed to meet the considered legal, practice, and ethical standards."
8. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal considered the distinction between the possibility of a punitive effect of protective orders, as opposed to protective orders having a punitive object. In Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129 the High Court accepted at [35] that: "Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears "each of these characters"."
9. The Tribunal is conscious of the distinction between the effect of its orders and their object. As mandated by the National Law, the latter is the focus of the Tribunal's attention with respect to the determination of appropriate protective orders. Having regard to the mandatory objective and guiding principle of the National Law, if the Tribunal concludes that the draconian step of cancelling or suspending the Practitioner's registration is necessary to protect the health and safety of the public, then it must make orders in those terms, notwithstanding that doing so may have a punitive effect on the Practitioner.
10. It was accepted by the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; 41 NSWLR 630 that the "gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal". The Tribunal approaches its evaluative determination on that basis.
11. The matters which inform the Tribunal's evaluative determination are not in doubt. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] the Tribunal said that (citations omitted): "In determining the appropriate protective orders the Tribunal is guided by the following considerations: (1) In the exercise of its functions under subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order."
12. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 Basten JA said at [101] that "The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order." The Tribunal approaches its evaluative determination on that basis.
13. In Prakash, Santow JA said, at [91], that "There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so".
14. In Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] the Court held that: "As is well established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual … That is not to deny that such orders may be punitive in effect … Nor does it necessarily following that punitive effects may not be relevant in formulating a protective order … Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist."
15. The Practitioner placed considerable reliance on those observations. The Tribunal accepts that these proceedings have been a "harrowing experience" for the Practitioner, and, particularly with respect to prescribing drugs of dependence, have "opened his eyes" to the gravity of his offending conduct. The Tribunal also accepts that, again particularly with respect to drug prescribing, as a result of these proceedings, the Practitioner has "achieved a level of insight into his misconduct, which did not previously exist".
16. By reference to the authorities to which both parties referred, the Commission submitted that, in determining the appropriate protective orders in this case, the Tribunal was required to consider: 1. the nature of the wrongdoing reflected in the complaints established; and 2. the orders required to protect the public, protect the reputation of the profession, and encourage adherence to appropriate conduct by members of the profession and the individual practitioner, in light of the wrongdoing identified.
17. In "characterising the seriousness of the professional misconduct engaged in by the practitioner" the Commission invited the Tribunal to consider 6 particular matters, all of which, we accept, find support in the authorities to which the parties referred the Tribunal: "(a) the practitioner's state of mind at the time of the impugned conduct (e.g. whether conduct was deliberate or inadvertent); (b) the period of time over which the conduct occurred; (c) any knowledge the practitioner had of particular vulnerabilities in a patient; (d) the risks of harm that the conduct was apt to create, and whether the risks were well known; (e) whether the conduct posed a risk to the patient when treated by other practitioners; (f) the practitioner's knowledge, skill and training."
18. The Practitioner submitted that, in formulating the appropriate protective orders, the Tribunal would have regard to ten matters, all of which, we accept, find support in the authorities: "(a) the absence of finding that the Practitioner exploited Patient B or the doctor/patient relationship; (b) the Practitioner did not display incompetence or lack of care/concern in his treatment of Patient B; (c) the Practitioner did not treat Patient B with any intention to benefit himself; (d) the Practitioner always visited Patient B at RPA or at the patient's home in a medical context; (e) although ineffectively, the Practitioner sought to arrange for the care of Patient B after he was unable to continue to be Patient B's general practitioner; (f) the evidence did not reveal any actual or potential connection with any legal affairs of Patient B; (g) there is no evidence that any patient of the Practitioner suffered because of his treatment or misconduct; (h) the Practitioner has many years in which he can continue to contribute to the community as a general practitioner; (i) the Practitioner has for a significant number of years been subject to and complied with many conditions attaching to his registration and has been closely supervised; (j) the Practitioner is unlikely to reoffend; (k) the Practitioner's good character and reputation with other medical practitioners is counter indicative of the need for cancellation or suspension of his registration in order to protect the health and safety of the public."

Commission's submissions

1. Understandably, and appropriately, the Commission placed very considerable reliance on the Tribunal's adverse findings with respect to the Practitioner's treatment of Patient A. The Practitioner admitted the facts upon which the Commission relied in support of its complaints with respect to Patient A. The Practitioner adduced no evidence at the Stage 1 hearing with respect to Patient A, and, unsurprisingly in the circumstances, did not seriously resist the findings sought by the Commission in that regard. The Practitioner relied on character and professional witness statements at the Stage 2 hearing, but, properly, adduced no evidence purporting to rationalise or excuse his treatment of Patient A. The comprehensive written submissions filed on behalf of the Practitioner did not engage with the seriousness of his proven misconduct with respect to the treatment of Patient A. Nor could they - the facts of his offending conduct speak for themselves.
2. It was submitted by the Commission that it was "plain" that the Practitioner "deliberately and not inadvertently" prescribed Schedule 4A and Schedule 8 drugs to Patient A over a period of 9 years. That submission is factually correct, and not challenged by the Practitioner. Whilst the prescribing was as the Commission submitted, and though misguided and potentially involving risk for the patient and the public, the Practitioner's prescribing was not for any improper purpose, or potential personal gain or advantage.
3. The Commission submitted that the Practitioner had been "on notice of Patient A's drug seeking behaviour" and, in a submission which was abundantly supported by the evidence before the Tribunal, which was not suggested to be "exhaustive" submitted that other doctors in the Practitioner's practice from time to time who saw Patient A recorded matters which should have put the Practitioner squarely on notice as early as 2008, and at the latest by 2012 that the Practitioner needed to closely consider and monitor his prescribing of drugs of addiction for Patient A. As the evidence upon which the Commission relied confirms, notwithstanding that being on notice of what other, apparently less senior practitioners recorded, the Practitioner nevertheless continued to fail to heed those "red flags", and, at least to some extent, prescribe for Patient A the drugs which Patient A wanted him to prescribe.
4. The Commission's submissions were based on Patient A's clinical record, the reliability of which was not disputed. On 21 October 2008 Dr Phan, who was then working in the practice, referred Patient A to a pain management specialist. On 12 January 2009 Dr Oh advised Patient A that he would not again prescribe Oxycontin for him. On 13 January 2009 Dr Phan refused Patient A's request to prescribe Oxycontin. On 26 September 2009 Dr Oh refused to prescribe Oxycontin for Patient A. On 6 October 2009 Dr Lombardi recorded that he would not provide further scripts for Patient A. On 19 January 2010 Dr Lavender referred Patient A to a pain management clinic. On 18 February 2011 Dr Goyal refused to prescribe 100 tablets for Patient A, describing him as highly agitated and aggressive. The Practitioner saw Patient A on 22 February 2011 and said in evidence that, although he would have looked at Dr Goyal's notes, he did not recall having done so or, if he did, doing anything in response to Dr Goyal's notes. On 21 March 2011 the Practitioner issued the same prescriptions, without reduction or alteration, as he had in previous years. In evidence at the Stage 2 Hearing the Practitioner conceded that he did not then know what the impact on Patient A of reducing Oxycontin dosage would be. On 19 May 2012 Dr Goyal recorded that Patient A was demanding more medication, threatening and shouting. The Practitioner saw Patient A on 20 May 2012. He did nothing different in response to Dr Goyal's notes from the previous day. On 23 June 2012 Dr Goyal saw Patient A and refused to prescribe more than 3 Oxycontin tablets for him.
5. The Commission submitted that, "From an early stage in the Practitioner becoming Patient A's treating doctor he was on notice of the patient behaving in ways that were entirely consistent with being addicted to Oxycontin". That submission is factually well founded. The s 150 transcript recorded the Practitioner admitting to having had conversations with colleagues where at least one said to him "I think he's just taking too much of it. I think he's a druggie". The Practitioner responded that "It's probably a bit of both".
6. The Commission relied on entries in the clinical records with respect to Patient A made by doctors other than the Practitioner detailing how he was self-medicating, and using Oxycontin in excess of the quantity prescribed. That should have alerted the Practitioner to the risk that Patient A was overdosing, or was selling a portion of his prescribed drugs. It did neither. The Commission referred [22] to a number of other instances where, after other practitioners had recorded such concerns, when he saw the Practitioner subsequently, the Practitioner prescribed the same dosage repeatedly and without change, without making any note of why he did so.
7. The Commission also relied [23] on instances of the Practitioner making changes to medication regimes for Patient A without explanation in the clinical records. That submission was factually well founded.
8. The Commission relied [24] on Patient A's particular vulnerability, referring to the entry in the clinical records that he suffered gunshot wounds when living in Afghanistan, and then further injuries in a car accident in or around 2008. The notes record that Patient A suffered from PTSD, and the Practitioner supported an application by Patient A for a disability pension. The notes recorded that Patient A had chronic pain. It was submitted that Patient A was "a particularly vulnerable patient with physical and psychological comorbidities. His susceptibility to addiction was evident". Those submissions are factually well founded. The evidence does not suggest that the Practitioner took advantage of Patient A's vulnerability. He appears to have been moved by Patient A's unfortunate history and circumstances to have largely prescribed what the patient wanted. If the Tribunal had concerns that the Practitioner might do that again, cancellation of his registration would be difficult to refuse.
9. The Commission referred to evidence of Dr Christie at the Stage 1 Hearing [25] with respect to the awareness of the risks of S8 and S4A prescribing which the Practitioner should have had as a senior and experienced GP involved in training GP Registrars and through his own CPD prior to 2014 and as early as 2011. Although Dr Christie's evidence with respect to the Practitioner's treatment of Patient B was vigorously criticised in numerous respects in the Stage 1 proceedings, the Tribunal does not understand that anything suggested by Dr Christie with respect to Patient A's treatment was challenged. If it was, any such challenges to Dr Christie's opinion evidence failed. The clinical records for Patient A provided ample factual underpinning for Dr Christie's opinions with respect to Patient A's treatment. The passages from Dr Christie's evidence to which the Commission referred [25] supported both Dr Christie's opinions, and the Commission's submissions at Stage 2 in reliance upon them.
10. The Commission further submitted that the Practitioner "was not only a general practitioner with many years of experience by the time he came to treat Patient A, he trained other general practitioners. Moreover, as a prescriber of S8 and S4D drugs, he had a professional obligation to maintain current knowledge of treatment issues and statutory regimes applying to this aspect of GP work. The information was broadly available, yet was not accessed by Dr Alexakis, or deliberately ignored - he instead continued to treat Patient A without even knowing the recommended maximum dosage of Oxycodone." Save that the Tribunal does not find that the Practitioner "deliberately ignored" any relevant information, this submission has force.
11. The Commission relied on the number and nature of the Practitioner's breaches of s 28(3) of the Poisons and Therapeutic Goods Act (NSW) 1966 as they emerged from the s 150 hearing. As the Commission submitted, they evidenced that: (a) the medical care provided to Patient A was inadequate and below standard; (b) Dr Alexakis let the patient tell him what he needed rather than him telling the patient what he needed (in the context of opioids being unlikely to assist with neuropathic pain); (c) the Practitioner was unable to distinguish between pain treatment and addiction treatment; (d) the Practitioner completely failed to understand his legal obligations when prescribing drugs of addiction; (e) even after being contacted by the Pharmaceutical Regulatory Authority in May 2017 Dr Alexakis took no steps to obtain an authority to continue prescribing drugs to Patient A; (f) Dr Alexakis admitted that the dosages prescribed to Patient A were excessive, having only recently prior to the s 150 hearing informed himself of the dosages for Oxycodone; (g) Dr Alexakis resumed prescribed Oxycodone and Fentanyl to Patient A after periods when he was supposedly overseas without any assessment or reassessment of the appropriateness of the prescribing."
12. The Commission submitted [29] that the fact that the complaint extended to only one patient "appears to be a matter of good luck rather than good management, given the Practitioner's admitted lack of understanding of the legal framework that governs the prescribing of drugs of dependence". Without embracing the Commission's colourful rhetoric, there is some force in the submission that, notwithstanding that the complaint related to only one patient, the Practitioner's evidence reveals that the risks to the health and safety of his patients with respect to the prescribing of drugs of dependence was not necessarily limited to Patient A.
13. The Commission submitted, accurately, that the overprescribing came to the attention of the Pharmaceutical Regulatory Unit (PRU), not through self-reporting or reporting by a colleague, but as a consequence of investigative action that the PRU was actively taking in its pursuit of overprescribing drugs of dependence. It was submitted [30] in conclusion with respect to Patient A that "The huge quantity of Oxycodone and Fentanyl prescribed by the Practitioner, together with the benzodiazepines, either put Patient A at grave risk of serious illness or death, or alternatively meant that there were drugs of dependence entering an illicit drug distribution process. Either is serious, and was ongoing for years, with minimal thought or attention by the Practitioner to the risks he was taking with Patient A or potentially the community at large." There is force in that submission. As will be seen, in determining the appropriate protective orders in this matter, the Tribunal is considerably more concerned by the evidence with respect to the Practitioner's treatment of Patient A with drugs of dependence than it is with respect to his treatment of Patient B.
14. The Commission submitted [32] that the Practitioner's failure to maintain appropriate medical records had numerous consequences: "(a) other practitioners were unable to discern the treatment plan, medication doses or other information relevant to their treatment of Patient A; (b) the absence of examination of the quantity of Oxycodone and Fentanyl being used between consultations allowed Patient A to control his consumption, rather than the Practitioner controlling it; (c) the absence of any analysis of the source of the pain and the reasons for it reflected the fact that the Practitioner had little if any clinical understanding of the patient's problems."
15. The seriousness of the defects in the Practitioner's medical records was submitted [33] to have been exacerbated by the fact that the Practitioner was issuing scripts for Schedule 8 and Schedule 4A drugs of addiction. That submission was amply underpinned by the references to the evidence of Dr Christie at the Stage 1 Hearing. As with the failure to maintain proper records with respect to Patient B, the failure to properly manage Patient A's access to drugs of dependence placed at risk the health and safety of the patient, both in terms of the Practitioner being able to access appropriate clinical information from the records for the purpose of his treatment of the patient and the ability of other medical practitioners assuming the care of the patient from time to time to do so. The importance of maintaining proper clinical records should not be underestimated, and the Tribunal does not do so.
16. With respect to Patient B, the Tribunal found at Stage 1 that the Practitioner had failed to observe proper professional boundaries with RPA and Concord Hospital staff. Although the Tribunal cannot excuse or condone such misconduct, we accept that it arose from the Practitioner's misguided concern for the welfare of Patient B, and his failure to play the limited role which he should appropriately have played in that regard. In all the circumstances, and having regard to the references from medical practitioners relied on by the Practitioner, that misconduct does not materially assist the Commission's case for cancellation or suspension of registration. The Practitioner's evidence suggests that he was appropriately chastened by the Tribunal's findings. The Tribunal finds that his offending conduct is unlikely to be repeated.
17. The Commission relied on the Tribunal's finding that the Practitioner had billed Medicare for long consultations on approximately 33 occasions which were not justified given the low level of clinical complexity. The findings of misconduct made by the Tribunal were submitted by the Commission with respect to Patient B [39] to both involve unethical behaviour, but of different types. One was submitted to have involved a willingness, at the very least, to be careless with public funds. The other was submitted to have reflected an inability to show due respect for other health practitioners. Each matter was submitted, rightly, to be serious in its own way. Billing of Medicare relies entirely on medical practitioners acting appropriately and honestly. When a doctor does not meet those standards, the whole system of publicly funded healthcare is undermined. Similarly, care of patients is often a multidisciplinary process in which general practitioners play a key role. Lack of respect for the parts played by other health practitioners is not only disrespectful to those practitioners, it undermines confidence in the multidisciplinary system and ultimately puts patient care at risk. It was submitted to be, at the very least, open to the Tribunal to rely on Complaint 3 to determine the appropriate protective orders to be made in response to the finding of professional misconduct found proven.
18. In conclusion the Commission submitted [40] that the Practitioner had engaged in serious professional misconduct over a number of years involving two patients, and that his conduct involved failures in discharging fundamental duties of a general practitioner. The Commission submitted, accurately, that the Practitioner's treatment of Patient A involved an actual risk of harm to Patient A, and ignored the potential risk to other members of the community if Patient A was not consuming the Schedule 8 and 4A drugs but was redistributing them. The Commission submitted, correctly, that a practitioner's obligation was to prescribe in a clinically appropriate way which could not be overborne by the patient's demands. The "character trait" of giving in to a patient rather than controlling the patient's treatment was submitted to be incompatible with the proper discharge of a general practitioner's duty of care towards a patient.
19. The inappropriate charging of Medicare for long consultations was submitted [41] to be "reflective of a character defect". It was thus submitted [42] that cancellation of the Practitioner's registration was the "only feasible way to protect the public", that it would also serve to uphold the high standards of the profession, by demonstrating that professional misconduct where appropriate will be sanctioned with cancellation of registration, and by demonstrating to other general practitioners who do adhere to acceptable standards that those standards are meaningful, and that breaches of the standards will be identified and dealt with in a way that protects the public and the profession".

Practitioner's submissions

1. The Practitioner made submissions with respect to the "intrinsic seriousness of the misconduct as it relates to fitness to practice". The Tribunal has found the proven conduct of the Practitioner sufficiently serious to constitute professional misconduct. As the submissions of the Commission make clear, the conduct falls into two distinct categories. As the submissions of the Commission properly reflect, the Practitioner's proven misconduct with respect to Patient A provides the more persuasive foundation for cancellation or suspension of the Practitioner's registration than do the findings with respect to Patient B. That is not to in any way diminish the significance of the Tribunal's findings at Stage 1 with respect to Patient B.
2. As noted earlier, although the submissions of the Practitioner at Stage 2 addressed broader issues of relevance to the determination of appropriate protective orders, they did not engage with the submissions of the Commission in that regard. That is unsurprising having regard to what emerges clearly and unequivocally from the evidence upon which the Commission relied. The Practitioner's evidence in cross-examination with respect to his treatment of Patient A was devoid of rationalisation, justification or exculpatory suggestions. His remorse was palpable. There is no rational basis for doubting that it was genuine. Being sorry after the event provides only limited assistance to the Practitioner's case. The unlikelihood of his offending conduct recurring provides greater support. Ultimately, if cancellation or suspension of registration is ordered, that would be because the Tribunal is comfortably satisfied that, only by such orders could the health and safety of the public be protected against the risk of the Practitioner prescribing drugs of dependence in the future in the way in which he did for Patient A over a long period and despite clear "red flags" about doing so. The risk of re-offending in that regard has not been established.
3. It was submitted on behalf of the Practitioner [57] that the Tribunal's findings at Stage 1, and the evidence before it at Stage 2 reveal that the Practitioner's misconduct "could satisfactorily be explained as an error of judgement rather than a defect of character". The Tribunal accepts, particularly having regard to the clear and genuine contrition which the Practitioner's evidence at Stage 2 revealed, that his misconduct did arise from errors of judgement, rather than a defect of character on the part of the Practitioner. That however assists the Practitioner to only a limited extent. The paramount consideration is the health and safety of the public. The risk to the health and safety of the public may be no less because a practitioner misguidedly, and without malign intent, makes errors of judgement in the absence of a defect of character. The issue which the Tribunal must resolve is whether the experience of these proceedings has awakened in the Practitioner a need for greater vigilance with respect to these aspects of his practice, which, with appropriate education and mentoring alleviates any unacceptable risk to the health and safety of the public. Different considerations would apply if the Tribunal found, which it does not, that the offending conduct was referable to character defects on the part of the Practitioner.
4. The Practitioner submitted that his offending conduct should be viewed as "an isolated episode and therefore atypical or uncharacteristic of the Practitioner". With respect to Patient B there is force in that submission. The Tribunal's findings at Stage 1 are consistent with so finding. As the Commission has cogently demonstrated, quite different considerations apply with respect to Patient A. The time over which the Practitioner allowed Patient A to effectively dictate to him the prescribing of drugs of dependence, despite doing so being clearly counter indicated having regard to the clinical entries of other practitioners in the practice who treated Patient A and the Pharmaceutical Regulator, precludes finding that misconduct to be an "isolated episode". Conversely, although very serious, there is no evidence of the Practitioner inappropriately prescribing of drugs of dependence for any other patient of the practice. The extent to which the Practitioner was in a position to potentially do that is less than clear, but it is not insignificant that, in about 2017, the Pharmaceutical Regulator investigated the Practitioner's prescribing, and that only Patient A excited the regulator's interest.
5. The Practitioner relied upon his "underlying qualities of character shown by previous and other conduct". The Tribunal is mindful of the references from patients of the Practitioner and, more significantly, the four references from eminent medical practitioners. Apart from the competence to which the professional witnesses refer, a recurrent theme is the Practitioner's "hard working and caring" qualities as a general practitioner. The Practitioner's treatment of Patient B revealed elements of each of those attributes.
6. The medical references are supportive of finding that the Practitioner is unlikely to reoffend if his registration is not cancelled or suspended, and that he is likely to continue to comply with any conditions imposed on him by the Tribunal, as he has with the conditions imposed on him at the s 150 hearing for some years. The evidence does not establish that the Practitioner's conduct was "motivated by any personal benefit". Whether the Practitioner benefited from, or will benefit from Patient B's estate, is not a matter about which the Tribunal can, or should speculate. The Tribunal's findings at Stage 1 provide the basis for our assessment of the risk which the Practitioner poses to the health and safety of the public. That risk does not change in response to whatever he may or may not receive from Patient B's estate.
7. Whether the Practitioner's conduct after the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a health practitioner was addressed in the Practitioner's statement (S2R1 Tab 1). Cross-examination of the Practitioner did not, in our view, materially or adversely impact on what the Practitioner there said, or on our assessment of these aspects of these issues.
8. Importantly, the Practitioner recorded [37] that "Having the finding against me that I billed Medicare for long consultations which were not justified given the low level of clinical complexity involved, causes me great shame". The Tribunal accepts that statement and that it was genuinely made.
9. The Practitioner recorded [38] that there has never been a "sustained complaint" against him for his Medicare billing, that Medicare investigators have come to his practice and examined his billings three times in more than thirty years. That circumstantial evidence provides support for the Practitioner's claim that his billing for Patient B was out of character.
10. The Practitioner referred [39] to Medicare contacting him in 2022 about Covid billing and to his realisation, after having gone through every consultation from both of his practices that some billing was "possibly incorrect" as a result of which he voluntarily repaid Medicare $7,000. In the absence of any evidence from Medicare to the contrary, the Tribunal does not consider that any aspect of the Practitioner's Medicare billing is supportive of the cancellation or suspension of his registration. Put bluntly, particularly having regard to the Tribunal's findings at Stage 1, it could reasonably be expected that, if Medicare had abiding concerns about the Practitioner's billings, if not before the Stage 1 decision, at least after it, there would have been some evidence of that before the Tribunal.
11. The Practitioner detailed [40]-[43] the CPD courses which he has completed since the s 150 hearing. The Practitioner said in that regard [44] that "I now know a lot more about opioid medications and prescribing. I was motivated to do it for my own professional benefit and knowledge. I want to be able to prescribe to my patients in a safe and appropriate manner. By completing the opioid treatment accreditation course (OTAC) I can provide this level of competency at a level superior to most GPs in NSW". The Practitioner detailed the steps which he has taken to improve the quality of his clinical records and to benign audits of them by two well respected and very experienced general practitioners. The Practitioner's evidence with respect to the measures he has taken to improve the quality of his clinical records [48]-[50] is accepted by the Tribunal. So is his evidence with respect to medical record keeping and management plans [51]-[53].
12. Under the heading "Treatment of patients with drugs of addiction", the Practitioner set out in some detail [54]-[67] the background to his treatment of Patient A, and, reassuringly, admitted that his "knowledge base was not sufficient to deal with Patient A". The Practitioner properly acknowledged that completing the OTAC course had "shown me how inadequate my management of Patient A was". The Practitioner detailed what was involved in the OTAC course as well as other courses conducted by the RACGP which he had completed. The Practitioner said that he was "a much better doctor for having done these courses" for reasons which he detailed. We accept that evidence.
13. With reference to the restrictions on his prescribing of S4A and S8 medications, which have applied since the s 150 hearing, and have precluded the Practitioner from prescribing such medications, the Practitioner said "The consequence to my patients is harsh because these medications do have indications in the management of common conditions in general practice, including post-operative pain, acute trauma pain relief, cancer related pain, and end of life prescribing in palliative care". The Practitioner further said that he had prescribed those medications previously "not as the sole decision maker, but rather in following instructions from specific palliative care teams or a specialist. If a patient I have had for many years develops a cancer and is dying or who is housebound, it means I can't visit them at home, and I can't prescribe their end of life medication. They need to find another doctor. I need to tell my patient this. This means my care of these patients has to be transferred to another doctor in their end of life. This is a trauma that no patient should be subjected to, and certainly not at the end of life".
14. Whilst there is force in what the Practitioner says, and the Tribunal takes that into account, if the prescribing of drugs of dependence is considered to constitute an unacceptable risk to the health and safety of the public, these considerations could not override such concerns.
15. With respect to "maintaining professional boundaries with specialists" the Practitioner referred to the absence of other complaints by specialists about him or his interaction with them during patient care in 35 years of general practice. The Practitioner set out educational programs which he has undertaken since the s 150 hearing. There is no reason to doubt the truthfulness or genuineness of the Practitioner's evidence in that regard.
16. With respect to home visits, the Practitioner said [89] "I am restricted from doing home visits and nursing home visits. This has meant that patients I have seen for a very long time have to come to the surgery, which means they need to find a form of transportation and a carer to help. It is possible that some of my older patients have gone to other doctors who are able to see them, and who are able to do home visits for them."
17. The Practitioner set out [90]-[97] the effect of the restrictions which have been imposed on him since 28 November 2017. The particular focus of those statements [90]-[95] was on the impact on patients of those restrictions. The Practitioner placed particular reliance upon longstanding patients and elderly or end of life patients and the impact of the conditions on him.
18. Under the heading "The effect of media reporting on me and my family" the Practitioner referred [98]-[104] to the media interest in the Supreme Court proceedings with respect to Patient B's estate. With respect to the Practitioner, and not disputing that such media attention would have been likely to have been distressing for him and his family, those are not matters to which the Tribunal can have regard in determining appropriate protective orders, save to the extent that such attention is likely to make the Practitioner more vigilant in the future with respect to his obligations to patients. To the extent that the Practitioner experienced adverse media interest as a result of the Tribunal's findings at Stage 1, that, as the Practitioner would realise, resulted from his proven misconduct, and cannot be called in aid of lesser rather than more appropriate protective orders.
19. Under the heading "Conditions of my registration" the Practitioner set out a number of his concerns or hopes in the event that his registration was not cancelled or suspended. The Practitioner said [105] that he would "like to eventually be able to do home visits/nursing home visits with patients" and identified how he was "compromised" by the current conditions. The patients of concern were said to be "complex and frail". The Practitioner said with respect to his wish to be able to do home visits that "Young doctors are reluctant to do home visits". The Practitioner referred, accurately, to the absence of any report by any of his mentors of any concerns with respect to his clinical practice. The Practitioner expressed his willingness to meet with a mentor once every 3 months for a period of 2 years if the Tribunal did not cancel or suspend his registration.
20. The Practitioner expressed a wish to be able to see 40 patients a day. With respect to him, the reasons for seeking to see an additional 4 patients are not persuasive. If the Practitioner's registration is not cancelled or suspended, the Tribunal would be reluctant to allow the Practitioner to see more than 36 patients a day in order to avoid the risk that the additional patient load might prove stressful in ways which made his compliance with conditions imposed on him more difficult. The Practitioner expressed his wish to be able to "eventually" prescribe Schedule 4A and Schedule 8 drugs for patients in palliative care, acute trauma, post-operation, post-hospital discharge and end of life patients. Those patients were said to be all under the care of specialists. The Practitioner reiterated [112] particular reasons why he would wish to be able to prescribe painkillers for cancer related pain, palliative care and end of life care.
21. It was submitted [69] that the Practitioner did not display incompetence or lack of care/concern with respect to Patient B. The Practitioner did not make a similar submission with respect to his care of Patient A. The Tribunal accepts the submission of the Practitioner [72] that the evidence of a previous inheritance should not form any part of determining appropriate protective orders. Although that was relied upon by the Commission at Stage 1, the Tribunal does not understand that to have been a matter relied upon at Stage 2.
22. It was submitted [76] that there was no evidence that any patient of the Practitioner suffered because of his treatment or misconduct. We are unable to accept that submission with respect to either Patient A or Patient B. In saying that, we are mindful of the fact that the Commission did not formally advance a complaint in those terms in the Stage 1 hearing. The actual risk to the health and safety of the patient and the public with respect to Patient A as a result of the Practitioner's conduct was considerable. That the risk apparently did not materialise was fortuitous for the Practitioner.
23. With respect to the risk to the health and safety of Patient B, a number of matters emerging from the evidence in the Stage 1 hearing support our rejection of the submission of the Practitioner referred to above. The Practitioner's stated practice with respect to reviewing pathology results was not followed when Patient B's haemoglobin dropped significantly - two months passing before the Practitioner acted on those results. This failure delayed the diagnosis of Patient B's bowel cancer. Although there is no evidence that the Practitioner's delay adversely impacted Patient B's fate, the course of his illness may have been different if the Practitioner had observed his stated usual practice.
24. In the course of approximately 90 home visits to Patient B, the Practitioner did things which he need not have done (multiple blood tests which had no impact on the patient's management) and omitted doing things which he ought to have done (organising effective nursing care including wound management). We accept that Patient B was "his own man", and not easily persuaded to do things he did not wish to do, particularly where health professionals were involved, but that does not entirely relieve a practitioner of the obligation to manage the patient's health.
25. As the Tribunal found in its Stage 1 decision, the failure to maintain adequate clinical records, and do so over a lengthy period, had the potential to adversely impact the health and safety of the Practitioner's patients. The very inadequacy of the clinical records obscures evaluating the quality of the Practitioner's care and management of his patients.
26. The Tribunal takes these matters into consideration, but does so in the context of the complaints made by the Commission, and our findings with respect to them. Whilst affording these matters weight in the Stage 2 determination, the Tribunal has been careful to avoid effectively dealing with the Practitioner as if he had been found guilty of complaints which were not made against him.
27. The Practitioner relied upon both his previous contribution to the community, which the Tribunal accepts is of longstanding and, save for the present complaints, without blemish. The Tribunal also accepts the submission of the Practitioner [77] that he has "many years in which he can continue to contribute to the community as a general practitioner". As recorded earlier, the Tribunal accepts that the Practitioner is unlikely to reoffend if his registration is not cancelled or suspended, and has the potential, and the will, to serve the community in a vitally important role for years if he is permitted to do so.
28. In support of his contention that the Practitioner would faithfully comply with any conditions imposed on his registration if it were not cancelled or suspended, reliance was placed on the absence of any breach of the conditions which have now been imposed on the Practitioner's registration for six and a half years. The mentoring reports provide assistance to the Practitioner's case in a number of respects, including the probability that, if his registration is not cancelled or suspended, the Practitioner would comply with any conditions imposed on him, as well as the evidence emerging from supervision or mentoring reports with respect to the Practitioner's competence and commitment to the welfare of his patients. The evidence referred to in support of that submission [87] provides considerable support for the Tribunal declining to find that cancellation or suspension of the Practitioner's registration is necessary in order to protect the health and safety of the public.
29. The Practitioner relied upon the evidence of his Psychologist, Mr Sheehan, [89]-[91]. The Tribunal accepts Mr Sheehan's evidence. There is no reason why it would not do so.
30. The Practitioner submitted that, in conjunction with appropriate conditions a reprimand was appropriate in all the circumstances of the case. The authorities establish that a reprimand is not necessarily a token or insignificant sanction in the case of a medical practitioner (Health Care Complaints Commission v Gazal [2023] NSWCATOD 92). A reprimand acts as a deterrent both directly and indirectly (NSW Bar Association v Meakes [2006] NSWCA 340). A reprimand upholds and reinforces the standards of and confidence in the profession (Health Care Complaints Commission v Dowla (No. 2) [2019] NSWCATOD 156). A reprimand may be all that is necessary to convey that there is no further need for deterrence in a particular case (Health Care Complaints Commission v Lord [2019] NSWCATOD 182). A reprimand would be publicly displayed on the Practitioner's registration. The Tribunal accepts the submission on behalf of the Practitioner [97] that there will "be shame to Dr Alexakis which accompanies the findings made against him. Conditions can be imposed for supervision and other restrictions on his practice, which are likely to be known to many of his colleagues. In aggregate these events represent a large measure of disapproval of his conduct".
31. It was further submitted that a reprimand would serve both the objectives of specific and general deterrence, and uphold public confidence in the standards of the profession, and constitute an adequate denunciation of the Practitioner's misconduct in the sense of being openly condemned (Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177).
32. If his registration is not cancelled or suspended, the Practitioner invited the Tribunal to propose conditions, including more regular mentoring, and restrictions on his ability to prescribe Schedule 4A and Schedule 8 medications for a period of two years. Mr Sheehan's evidence was submitted [104] in the passage relied upon by the Practitioner to support such an approach.

Commission's reply submissions

1. In submissions in reply the Commission submitted [2] that, having regard to the nature and duration of the conditions attaching to the Practitioner's registration regard to how he has conducted himself over the past six and a half years is of "limited utility" to the Tribunal. The Tribunal accepts that proposition in part. If however, the conduct of which the Practitioner has been found guilty was other than aberrant, or that it reflected defects of character, it is improbable that, even whilst practising subject to fairly stringent conditions, there would not have been some further conduct indicative of those concerns persisting. The supervision reports assume particular significance in this context, and provide support for finding that the Practitioner's conduct over the past six and a half years has been indicative of how he would practice if he is able to continue to do so, rather than a performance or pretence aimed at securing that outcome. The Tribunal accepts the submission of the Commission that, with respect to the proven misconduct in relation to Patient A's treatment it was "not a matter where the Practitioner himself, after a period of time, identified that the patient was drug dependent and attempted to do anything about it". However, this is not a case in which the Tribunal is asked to accept that the passage of time alone has resulted in rehabilitation. Over a lengthy period, the Practitioner's conduct suggests significant rehabilitation.
2. Although conceding that the "mentoring reports reflect positively" on the Practitioner [5], the Commission submitted that they ought not carry significant weight, for the reasons identified earlier. If those reports were considered in isolation, there may be some force in that contention. Against the background of the Practitioner's overall career in medicine, the absence of other complaints over the more than three decades of that career, the patient references and, more significantly, the four medical references upon which he relies, the Tribunal is not persuaded that the weight attaching to the Practitioner's conduct over the past six and a half years, as observed by his mentors, is not entitled to significant weight. Importantly the Practitioner has revealed, both by what he has done and by what he has said in oral evidence that he is now, in his own words, a "far better doctor" than he was before, both in terms of education and insight.
3. The Tribunal accepts the thrust of the Commission's submissions with respect to any attempt by the Practitioner to deflect attention from the Tribunal's findings of misconduct by reference to examples of worst or worse cases. As the Court of Appeal made clear in Litchfield, the standard by which misconduct is measured is not that of the worst offenders but the standard which is required in all the circumstances. As we have earlier observed, the Practitioner's good character is of limited assistance to his case, given that a medical practitioner is expected to be of good character. The Tribunal agrees with the submission of the Commission that reliance upon other cases, with different facts, in which particular protective orders were made is of only limited assistance to the Tribunal's evaluative determination.
4. The Tribunal has regard to the judgment of Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 to which the Commission referred [13]. In this case the objective fact of compliance with conditions is for a period of six and a half years, five times the period involved in Prakash. There is no evidence of non-compliance with previous conditions in this case. The Practitioner's evidence in the witness box provides support for confidence in his ability to practise medicine safely subject to conditions if his registration is not cancelled or suspended. The Tribunal is comfortably satisfied that the current proceedings have impacted upon the Practitioner in the various ways which we have earlier identified, not the least being that he is now more competent and insightful than he was prior to 2017. To the extent that the Practitioner's compliance with conditions for six and a half years is a "major plank" in his case, it is not the only plank or the only significant plank. We have earlier identified the various and important changes in the Practitioner's competence, insight and practice management which he has learnt and implemented and his recognition that he still "has work to do" with respect to a number of those matters.
5. The Commission submitted [17] that a reprimand did not sufficiently reflect the seriousness of the professional misconduct found proven against the Practitioner.

Consideration

1. The comprehensive submissions of the parties clearly identify the critical issues requiring determination. The Tribunal undertakes an evaluative determination, giving the weight considered appropriate to the factors supporting cancellation or suspension of the Practitioner's registration, and to those militating against doing so. The paramount consideration is the health and safety of the public. Unless the Tribunal is comfortably satisfied that imposing appropriate conditions upon the Practitioner's registration would result in an unacceptable risk to the health and safety of the public, having balanced all of the matters to which we have referred, that would be the appropriate remedy. As noted at the commencement of these reasons, although the Commission adheres to its case that only cancellation or suspension of the Practitioner's registration would be sufficient to avoid an unacceptable risk to the health and safety of the public, there is little disagreement between the parties with respect to the terms of the conditions which should be imposed on the Practitioner's registration if it is not cancelled or suspended.
2. The Tribunal concludes that the preponderance of relevant factors suggests that the imposition of appropriate conditions on the Practitioner's registration would adequately protect the health and safety of the public, obviating the need to cancel or suspend the Practitioner's registration in order to achieve that objective. Realistically, having regard to his age, and the professional development which the Practitioner has undertaken in the past six and a half years, little purpose would be served in suspending his registration. At the end of such suspension the Practitioner could return to practice. If the Tribunal is persuaded that allowing the Practitioner to continue to practice would constitute an unacceptable risk to the health and safety of the public, it is difficult to see how a period of suspension would realistically alleviate or ameliorate that risk. Given his age, cancellation of the Practitioner's registration would be likely to result in the Practitioner not seeking to resume practice. Doing so would be likely to be problematic after a period of cancellation of his registration. On balance, the Tribunal is comfortably satisfied that the imposition of appropriate conditions on the Practitioner's registration, for a significant period, would be sufficient to adequately protect the health and safety of the public.
3. To simply impose conditions on the Practitioner's registration would however, in all the circumstances, and particularly in view of the findings of misconduct with respect to the treatment of Patient A, fail to adequately reflect the Tribunal's disapproval of that offending conduct. It would also risk not signifying to other practitioners who "do the right thing" how seriously such misconduct is viewed by the Tribunal. Failing to do more than impose conditions on the Practitioner's registration would also, in the Tribunal's view, fail to adequately signify to the public the strength of the Tribunal's disapproval of such conduct, and how it is treated. A reprimand is not a token sanction. As submitted on behalf of the Practitioner, a reprimand remains on the Practitioner's record, it is likely to become known, particularly having regard to the media interest which the Practitioner's cases have generated, both within and beyond the medical profession.

Determining appropriate conditions

1. In its submissions of 4 April 2024, the Commission articulated the basis upon which it sought the amended minute of conditions following its consultation with the Medical Council of New South Wales. The Commission made clear that doing so was in no way resiling from its contention that cancellation or suspension of the Practitioners registration was necessary. The Practitioner's solicitor's letter of 12 April 2024 consented to all of the conditions sought by the Commission, but sought to extend the time to complete the courses proposed to a period of twelve months agreed with those conditions. The reasons for such extension of time were cogent. The Tribunal is minded to agree to the extension of time sought by the Practitioner.
2. Subject to the minor change sought by the Practitioner, the conditions proposed by the Commission are in the Tribunal's view appropriate. Notwithstanding that the parties do not disagree with respect to the substance of the conditions, the Tribunal is not obliged to accept the conditions. The conditions sought apply for a period of two years from the date of our orders. The effect of the conditions, in conjunction with the period during which the Practitioner has complied with conditions, would be that he will have practised subject to reasonably onerous conditions for a period of eight and a half years before the prospect of practising without conditions could materialise. Importantly, as the conditions recognise, during the period of the conditions proposed in these proceedings, the Practitioner will undergo further training and education. Also, importantly the conditions require the Practitioner to obtain Medical Council of New South Wales approval prior to changing the nature or place of his practice, the conditions would require the Practitioner to practice only in a group practice approved by the Medical Council of New South Wales where there are at least two other registered medical practitioners, which is an accredited practice, where patients and patient records are shared between medical practitioners. For two years the Practitioner would not be able to undertake locum positions or conduct home or nursing visits.
3. Although in his submissions the Practitioner sought that he be able to see 40 patients a day, we do not understand that to be his ultimate position. Even if it is, having regard to the evidence of the Practitioner himself that pressures in the practice contributed to his misconduct with respect to Patient A, we would not be disposed to increase the number of patients which the Practitioner can see in any one day beyond 36.
4. The conditions with respect to Schedule 8 and Schedule 4D substances are in our view fundamental to the Tribunal finding that cancellation or suspension of the Practitioner's registration is not necessary in order to protect the health and safety of the public against unacceptable risk. The requirements to practice in accordance with Medical Council guidelines for self-treatment and treating relatives, although not a major concern, is an appropriate additional protective measure, as is the requirement of consent to any exchange of information between the Medical Council, Medicare and Pharmaceutical Services for the purpose of monitoring compliance with these conditions.
5. The mentoring condition is important in our view, as are each of the provisions of the proposed condition with respect to mentoring. Proposed condition 10 is appropriate provided that the requirement is that the Practitioner complete the courses within twelve months of the date of the Tribunal's orders. Similar comments apply to proposed conditions 11 and 12. Compliance with Proposed condition 13 may be problematic in practice. In view of the cumulative effect of Proposed conditions 10, 11 and 12, we do not consider Proposed condition 13 to be necessary to protect the health and safety of the public. The balance of the conditions are appropriate but do not require further comment.

Costs

1. The Commission submitted [43] that "The Applicant recognises that much of the hearing time was taken up with Complaint Three, and that the Applicant did not establish all of the particulars to Complaint Three. As such the Applicant is willing to concede a reduction in the usual estimate of costs on an ordinary basis of approximately 75% of costs to a reduction to 60%. Given that the Respondent defended Complaints Three, Four and Five and the Applicant succeeded in all three, this is a reasonable concession. If this is contested, the Applicant will address the principle of costs orders in reply".
2. The Practitioner submitted, by reference to Health Care Complaints Commission v Philipiah [2013] NSWCA 342 that [109] "Here, the Commission has been almost entirely unsuccessful in proving what was really in dispute in these proceedings. Dr Alexakis admitted Complaints 1 and 2. The real conflict related to Complaint 3, and the Commission was only able to establish two of the asserted particulars. Complaints 4 and 5 were very much addressed as conduct which was accepted, and the only issue was whether the conduct could properly be characterised as unsatisfactory professional conduct or professional misconduct".
3. The Practitioner further submitted [110] that "much time and effort went into the expert evidence of Dr Christie. The evidence was critical of the conduct of Dr Alexakis. Whilst not necessarily rejecting the evidence of Dr Christie, it played no part in any adverse findings against Dr Alexakis".
4. Not surprisingly, the issue of costs was addressed far less extensively than the determination of appropriate protective orders. In those circumstances, and particularly as the parties did not then know what orders the Tribunal would make with respect to the Stage 2 determination, we are reluctant to finally determine the issue of costs unless the parties are content for us to do so on the basis which we shall indicate.
5. Notwithstanding the factual admissions made by the Practitioner, the Commission still had to prove its case. As the Tribunal's reasons at Stage 1 make clear, that involved the Commission proving unsatisfactory professional conduct and that the Practitioner's unsatisfactory professional conduct was sufficiently serious to constitute professional misconduct. The Commission was successful in both respects. Although the Commission was unsuccessful with respect to some complaints, having secured findings of guilt with respect to unsatisfactory professional conduct and professional misconduct, the Commission achieved overall success at Stage 1. Prima facie the Commission was entitled to its costs of the Stage 1 determination. There is no suggestion that there was any disentitling conduct on the part of the Commission. Nor could there have been such a suggestion.
6. So far as the Stage 2 determination is concerned, whilst it is true that the Commission failed to secure the cancellation or suspension of the Practitioner's registration, it secured both a reprimand, albeit that was not ultimately opposed by the Practitioner, and the imposition of onerous conditions on the Practitioner's registration. As the authorities recognise there is a material distinction between inter partes litigation and proceedings of this kind in which there is a public interest. The Commission's failure to secure findings of guilt with respect to some of its complaints does not imply, and the Tribunal did not suggest that prosecuting those complaints was other than reasonable and appropriate. The evidence available to the Commission with respect to those complaints justified agitating them in the interests of the health and safety of the public.
7. On the evidence before the Tribunal at Stage 1, and having regard to the Tribunal's Stage 1 findings, the Commission was entirely justified in persisting with its application for cancellation or suspension of the Practitioner's registration. The fact that it did not ultimately secure that outcome ought not, in the circumstances of this case, be held against the Commission. Particularly at Stage 2, until the Practitioner's evidence with respect to the impact of disciplinary proceedings on him/her, and the insight which the Practitioner has gained from that experience is tested, the Commission was entitled to persist with its claim for cancellation or suspension of registration.
8. The Commission sought an order that the Practitioner pay 60% of its costs as agreed or assessed. The Tribunal considers that such an order would be just and equitable in all the circumstances of this case, and properly reflect the comparative measures of success achieved by each party. However, given that the parties have not had the opportunity to consider the impact on costs of the outcome of the Stage 2 proceedings, unless the parties indicate that they do not wish to be heard further with respect to costs, the Tribunal will provide an opportunity for them to make further oral submissions on a date agreed between Counsel and the presiding Member.

Orders 1. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) Dr Peter Alexakis is reprimanded. 2. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the registration of Dr Peter Alexakis as a medical practitioner: 1. To obtain Medical Council of New South Wales approval prior to changing the nature of place of his practice. 2. To practice only in a group practice approved by the Medical Council of New South Wales where there are at least 2 registered medical practitioners (excluding Dr Alexakis): a. Where the patients and patient records are shared between the medical practitioners b. Which is an accredited practice. 3. Not to undertake locum positions. 4. Not to conduct home or nursing home visits. 5. Not to treat more than 36 patients in any one day. 6. 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). 7. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 8. To practice in accordance with the current Medical Council of New South Wales' guideline for self-treatment and treating relatives as notified and varied from time to time. 9. To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 10. To nominate an experienced General Practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body: a. at each mentoring meeting the practitioner is to include discussion of the following: i. maintaining boundaries ii. prescribing iii. managing difficult patients b. to authorise the mentor to report, in an approved format, to the Council every 3 months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing c. to authorise the Medical Council of NSW to provide approved mentors with a copy of the decision/s which led to the imposition of this condition. 11. To complete within 12 months of the date of this decision "Palliative Care, the essentials" course organised by the RACGP: a. within 1 month of the date of this decision to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned course b. within 1 month of completing the abovementioned course, to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the course c. to bear responsibility for any costs incurred in meeting this condition d. if the "Palliative Care, the essentials" course organised by the RACGP is unavailable, the Practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 2 months from the (date of recommencement of practice). 12. To complete within 12 months of the date of this decision "Ethical Decision Making" course organised by DAVAAR Consultancy a. within 1 month of the date of this decision to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned course b. within 1 month of completing the abovementioned course to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the course c. to bear responsibility for any costs incurred in meeting this condition d. if the "Ethical Decision Making" course organised by DAVAAR Consultancy is unavailable, they must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal by no later than 2 months from (date of recommencement of practice). 13. To complete within 12 months of the date of this decision the "Safe Professional Boundaries" course organised by DAVAAR Consultancy: a. within 1 month of the date of this decision to provide evidence to the Medical Council of New South Wales of enrolment into the abovementioned course b. within 1 month of completing the abovementioned course, to provide evidence to the Medical Council of New South Wales from the training provider that they have satisfactorily completed the course c. to bear responsibility for any costs incurred in meeting this condition d. if the "Safe Professional Boundaries" course organised by DAVAAR Consultancy is unavailable, they must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why they are making this proposal, by no later than 2 months from (date of recommencement of practice). 14. Not to supervise any other medical practitioner or medical student. 15. These conditions may be altered, varied, or removed by the Medical Counsel of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW). 16. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia. The Tribunal notes the intention of the Respondent to complete the following RACGP courses, and recommends that he do so: a. Self Care for GPs b. Professional in Practice (RACGP) c. SafeScript NSW - new approval management functionality d. Practical Pain Management in General Practice - things I didn't know but wish I had (RACGP). 1. The Respondent pay 60% of the Applicant's costs as agreed or assessed on the ordinary basis. 2. A party seeking an order other than order 3 has leave to file written submissions not exceeding 7 pages in length in support of such order within 21 days. 3. A party resisting an application pursuant to order 4 file and serve written submissions not exceeding 7 pages in length in support of such opposition within 42 days. 4. A party opposing any application pursuant to order 4 being determined on the papers include submissions in support of such opposition in any submissions filed by that party pursuant to order 5 or order 6.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 02 July 2024 - Order (2) condition 1 amended to condition 1 and 2. Conditions renumbered. 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: 02 July 2024