These proceedings are constituted by an amended Notice of Complaint brought by the complainant, the Health Care Complaints Commission ("HCCC") against the respondent Dr Mengyi Chen. The complaints brought against the respondent in their amended form are in the following terms;
The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) (the "National Law")
HEREBY COMPLAINS THAT
Dr Mengyi Chen ("the practitioner") of [address] being a medical practitioner registered under the National Law,
AMENDED COMPLAINT ONE
is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
BACKGROUND TO COMPLAINTS ONE TO THREE
At all relevant times Dr Chen was a practising as a general practitioner at a practice known as the Dundas Valley Medical Centre in Telopea New South Wales.
PARTICULARS OF AMENDED COMPLAINT ONE
PATIENT A
The practitioner prescribed the drug Pethidine to Patient A on the dates and in the quantities set out in the schedule attached and marked A:
a. Without performing an appropriate medical assessment prior to issuing such prescriptions;
b. Without following up a referral of Patient A to a specialist on 14 November 2012 for treatment, review and/or advice;
c. Without obtaining an authority to prescribe a Type B drug of addiction to a person for continuous therapeutic use for a period exceeding two months, contrary to section 28(2)(a) of the Poisons and Therapeutic Goods Act 1966 (PTG Act);
d. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependent person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
e. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient A was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
f. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is medically appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 (PTG Reg);
g. For a duration that was in excess of recognised therapeutic standards of what is medically appropriate.
Patient B
The practitioner prescribed the drug Oxycodone to Patient B on the dates and in the quantities set out in the schedule attached and marked B:
a. Without performing an appropriate medical assessment of Patient B's injuries prior to issuing such prescriptions;
b. Without a timely referral of Patient B to a specialist for treatment, review and/or advice, when the previous medical notes indicated a dependency;
c. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
d. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient B was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
e. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg;
f. In an inappropriate combination with benzodiazepines, namely, Diazepam, Oxazepam, Nitrazepam and Temazepam.
The practitioner prescribed the drugs Diazepam, Oxazepam, Nitrazepam and Temazepam to Patient B on the dates and in the quantities set out in the schedule attached and marked B:
a. Without performing an appropriate medical assessment of Patient B's injuries prior to issuing such prescriptions;
b. Inappropriately and in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard for what is appropriate in the circumstances contrary to clause 34 of the PTG Reg.
Between the 21 February 2014 and 24 June 2014 the practitioner prescribed the drugs Diazepam, Oxycodone and Nitrazepam to Patient B on the dates and in the quantities set out in the schedule attached and marked B in circumstances where on 19 February 2014, Patient B had been referred by another doctor at the same practice to a centre for addictive medicine and registered on the NSW Opiod Treatment Program ("OTP") on 20 February 2014 and the practitioner knew, or ought to have known, about this referral.
Patient C
The practitioner prescribed the drug Diazepam to Patient C on the dates and in the quantities set out in the schedule attached and marked C:
a. Without performing an appropriate medical assessment prior to issuing such prescriptions;
b. Inappropriately and in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard for what is appropriate in the circumstances contrary to clause 34 of the PTG Reg;
c. For a duration that was in excess of recognised therapeutic standards of what is medically appropriate.
The practitioner prescribed the drug Oxycodone to Patient C on the dates and in the quantities set out in the schedule attached and marked C:
a. Without performing an appropriate medical assessment prior to issuing such prescriptions;
b. Without a timely referral of Patient C to a pain clinic or addiction specialist for treatment, review and/or advice;
c. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependent person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
d. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient C was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
e. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is medically appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 (PTG Reg);
f. In an inappropriate combination with a benzodiazepine, namely, Diazepam.
Patient D
The practitioner prescribed the drug Oxycodone to Patient D on the dates and in the quantities set out in the schedule attached and marked D:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient D was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
c. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg.
Patient E
The practitioner prescribed the drug Oxycodone to Patient E on the dates and in the quantities set out in the schedule attached and marked E:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient E was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused.
Patient F
The practitioner prescribed the drug Oxycodone to Patient F on the dates and in the quantities set out in the schedule attached and marked F:
a. Without performing an appropriate medical assessment prior to issuing such prescriptions;
b. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
c. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient F was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
d. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg;
e. For a duration that was in excess of recognised therapeutic standards of what is medically appropriate.
Patient G
The practitioner prescribed the drugs Oxycodone, Nitrazepam and Diazepam to Patient G on the dates and in the quantities set out in the schedule attached and marked G:
a. Without performing an appropriate medical assessment prior to issuing the first of such prescriptions for each of those drugs and also in relation to upgrading Oxycodone to 40mg on 20 August 2012;
b. Without a timely referral of Patient G to Drug and Alcohol clinic for treatment, review and/or advice.
The practitioner prescribed the drug Oxycodone to Patient G on the dates and in the quantities set out in the schedule attached and marked G:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient G was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
c. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg.
d. In an inappropriate combination with benzodiazepines, namely Diazepam and Nitrazepam, for the duration that applied.
The practitioner prescribed the drugs Diazepam and Nitrazapam on the dates and in the quantities set out in the schedule attached and marked G inappropriately and in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard for what is appropriate in the circumstances contrary to clause 34 of the PTG Reg.
Patient H
The practitioner prescribed the drug Oxycodone to Patient H on the dates and in the quantities set out in the schedule attached and marked H:
a. Without performing an appropriate medical assessment prior to issuing the first of such prescriptions for that drug; and
b. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act.
Patient I
The practitioner prescribed the drug Alprazolam to Patient I on the dates and in the quantities set out in the schedule attached and marked I:
a. Without performing an appropriate medical assessment prior to issuing the first such prescription for the drug;
b. Without timely referring of Patient I to a specialist for treatment, review and/or advice;
The practitioner prescribed the drug Alprazolam to Patient I on the dates prior to 1 February 2014 and in the quantities set out in the schedule attached and marked I inappropriately in a quantity, and for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the PTG 2008.
The practitioner prescribed the drug Alprazolam to Patient I on the dates after 1 February 2014 and in the quantities set out in the schedule attached and marked I:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependent person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient I was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
c. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg;
Patient J
The practitioner prescribed the drugs Oxycodone, Diazepam and Fentanyl to Patient J on the dates and in the quantities set out in the schedule attached and marked J:
a. Without performing an appropriate medical assessment prior to issuing such prescriptions;
b. Without timely referring of Patient J to a specialist (including to a Drug and Alcohol clinic and to investigate osteoporosis) for treatment, review and/or advice.
The practitioner prescribed the drugs Fentanyl and Oxycodone to Patient J on the dates and in the quantities set out in the schedule attached and marked J:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient J was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused.
The practitioner prescribed the drug Oxycodone on 2 April 2012 in an inappropriate combination with a benzodiazepine, namely, Diazepam.
Patient K
The practitioner prescribed the drug MS Contin to Patient K on the dates and in the quantities set out in the schedule attached and marked K:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient K was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
c. In an inappropriate combination with a benzodiazepine, namely Diazepam.
Patient L
The practitioner prescribed the drug Oxycodone to Patient L on the dates and in the quantities set out in the schedule attached and marked L:
a. Without performing an appropriate medical assessment prior to issuing the first of such prescriptions on 12 December 2011;
b. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
c. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient L was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
d. Inappropriately in a quantity and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg;
e. For a duration in excess of recognised therapeutic standards of what is medically appropriate.
Patient M
The practitioner prescribed Diazepam and Alprazolam to Patient M on the dates and in the quantities set out in the schedule attached and marked M:
a. Without performing an appropriate medical assessment in relation to Patient M's anxiety status prior to issuing such prescriptions;
b. In an inappropriate combination with each other drug, in circumstances where the practitioner ought to have known that the Patient M was previously registered on the OTP.
The practitioner prescribed the drug Alprazolam to Patient M on the dates and in the quantities set out in the schedule attached and marked M:
a. Without promptly referring Patient M to a specialist for treatment, review and/or advice, for prolonged;
b. For a duration in excess of recognised therapeutic standards of what is medically appropriate
The practitioner prescribed the drug, Alprazolam to Patient M on 3 March 2014:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient M was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused.
Patient N
The practitioner prescribed the drug Oxycodone to Patient N on the dates and in the quantities set out in the schedule attached and marked N:
a. Without performing an appropriate medical assessment prior to issuing such prescriptions;
b. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
c. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient N was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
d. Inappropriately for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 79 of the PTG Reg;
e. For a duration in excess of recognised therapeutic standards of what is medically appropriate.
The practitioner prescribed the drug Oxycodone to Patient N during the period from 9 January 2014 to 2 April 2014 and in the quantities set out in the schedule attached and marked N when the practitioner ought to have known that Patient N was on an OTP at the time.
Patient O
The practitioner prescribed the drug Oxycodone to Patient O on the dates and in the quantities set out in the schedule attached and marked O:
a. Without obtaining an authority to prescribe a Type C drug of addiction to a drug dependant person (within the meaning of section 27 of the PTG Act), contrary to section 28(3) of the PTG Act;
b. When such prescribing was contraindicated as the practitioner knew or ought to have known that Patient O was exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;
COMPLAINT TWO
Is guilty of unsatisfactory professional conduct under s139B of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010
PARTICULARS OF COMPLAINT TWO
The practitioner failed to maintain adequate medical records in accordance with Sch 2 to the Health Practitioner Regulation (NSW) Regulation 2010 for each of Patients A to O in that the practitioner failed to record:
a. Information known to the practitioner relevant to her diagnosis and treatment of patients including sufficient detail of:
i. the patient's medical history;
ii. the results of any physical examinations of the patient;
iii. details of any examination of the patient's mental state;
iv. progress of the patient at each visit; and
v. diagnoses of the patient.
b. Particulars of any clinical opinion reached by the practitioner;
c. Plans of treatment for the patient (including recording the reasons for the practitioner's decision to prescribe particular medication); and
d. A level of detail appropriate to the patient's case and/or to the medical practice involved.
COMPLAINT THREE
Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
(ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
PARTICULARS OF COMPLAINT THREE
The Particulars for Complaint One and Two are relied upon and repeated, both individually and cumulatively.
By way of formal written Reply, and during the course of the proceedings the respondent admitted with respect to
Complaint 1, Particulars 1a to 27a (inclusive) except for Particular 27b and that her conduct amounted to unsatisfactory professional conduct
Complaint 2, Particular 1 and accepted that her records contravened the standards required by the relevant regulations, and that her conduct amounted to unsatisfactory professional conduct
Complaint 3, that her admitted conduct set out with respect to the previous complaints amounted to professional misconduct under section 139E of the Health Practitioner Regulation National Law ("the National Law").
During the course of the proceedings the Complainant withdrew some particulars of Complaint 1 and the respondent admitted some particulars Furthermore, the schedules to the complaint, which we have not reproduced, contain allegations that a number of duplicated prescriptions were issued to patients on the same day. All of those allegations have been withdrawn by the HCCC save for the issue of duplicate scripts to patient B on 12 November 2012 and patient G on 20 August 2012, both of which have been conceded by the respondent.
Accordingly, the area of controversy with which we are concerned in the proceedings extends to the nature of any protective orders which should be made.
Evidence provided to the Tribunal by the respondent is to effect that she was born on 15 March 1962 and completed a medical degree from the Guangzhou Medical College in China in 1984. She worked as an obstetrics and gynaecology registrar before emigrating to Australia in 1988. In 1995 she completed a Bachelor of Nursing from UTS, Sydney and later obtained a Certificate from the Australian Medical Council allowing her to be registered as a medical practitioner in New South Wales on 25 August 2003. She obtained a FRACGP in 2009. The respondent commenced working as a general practitioner on the Central Coast in New South Wales and in March 2010 commenced working 3 days a week at Campsie Medical Centre, where she is still engaged. Between March 2010 and September 2011 she worked 2 days a week at a practice in Castle Hill. In December 2011 the respondent commenced working two days a week at the Dundas Valley Medical Centre, being the practice where her admitted professional misconduct occurred.
In her written evidence the respondent said that prior to commencing work at the Dundas Valley Medical Centre she recognised that she needed to gain skills in the area of mental health and chronic pain because of the patient profile which attended that centre. We shall refer in more detail to the circumstances concerning this practice later in these reasons for decision.
[2]
Dr Hanni Bittar
The complainant qualified Dr Hanni Bittar to provide expert opinion to the Tribunal for the purpose of dealing with the complaints concerning the treatment afforded by the respondent to her patients. Dr Bittar is an experienced general practitioner with postgraduate qualifications, holding Conjoint Senior Lecturer positions at several universities. Dr Bittar was provided with a great deal of documentation by the complainant including, but not limited to the respondent's clinical notes concerning each of the patients who are the subject of these proceedings. We accept the expert opinions expressed by Dr Bittar, and the respondent did not contend to the contrary, save for those matters which were raised on her behalf in cross examination. Dr Bittar provided a written report dated 30 July 2015 which became evidence in the proceedings.
Dr Bittar commenced his report by making some general observations concerning the restricted drugs of addiction which were prescribed by the respondent and others in the Dundas Valley practice to the patients. He said that the clinical indications for prescribing oxycodone, fentanyl, alprazolam and MS Contin were for the relief and management of moderate to severe chronic pain which was unresponsive to non-narcotic analgesia. The management of chronic non-malignant pain should include a multidisciplinary approach designed to minimise the pain, maximise the patient's level of function, minimise the side-effects of medication and to offer non - pharmacological measures to reduce the duration and dose of analgesics so as to avoid dependency. The administration of these drugs is governed by legislation, and medical practitioners who are prescribing drugs of this kind to persons known to be depended upon them, or otherwise for a long period require an authority to do so. There is a recognised therapeutic standard for the circumstances in which these drugs are to be administered. He said that opioids "can cause an increased risk of choking, low blood pressure, a slowed breathing rate and potential for breathing to stop, or a coma." Sedatives and anti-anxiety medications "can cause memory problems, low blood pressure and slowed breathing. Overdose can cause coma or death. Abruptly stopping the medication may be associated with withdrawal symptoms that can include hyperactivity of the nervous system and seizures."
Dr Bittar outlined procedures that should be undertaken by medical practitioners to determine whether a patient taking any of these drugs is drug dependent. In all cases it was important to take "a good thorough history" and perform proper examinations. It was also necessary to create a management plan, consult a specialist or a specialised unit and make enquiries from the "Doctors Shoppers Hotline" or the Methadone users register.
Dr Bittar was asked to explain the clinical indications for prescribing benzodiazepines to patients with a history of drug dependence. Such substances include diazepam, nitrazepam, oxazepam and alprazolam. These substances are commonly used outside a surgical or hospital environment as a muscle relaxant, to treat epilepsy and in palliative care. They could be used for one or two nights to deal with prolonged sleeplessness where other conservative methods have failed, for insomnia due to jetlag, for severe and acute muscle spasm where conventional methods have failed and for severe and acute recent anxiety if no other appropriate support is available or while counselling support is arranged. The effect of benzodiazepines may be increased when combined with antipsychotic drugs, antidepressant drugs and analgesics containing codeine. Whilst benzodiazepines may relieve the symptoms of anxiety and insomnia in the short term, Dr Bittar noted that they do not cure the underlying problems and have a number of unwanted and potentially harmful effects. They can produce tolerance and dependence and the risk of drug withdrawal is significant after use for any length of time. Additional harmful effects include impaired memory and concentration, emotional anaesthesia, depression, loss of balance, impaired motor coordination, mood swings and irritability and outbursts of rage. Long-term harmful effects may include cognitive impairment.
Dr Bittar was asked to comment on any adverse effects of prescribing Schedule 8 opioid drugs in combination with benzodiazepines. This was the case with a number of the patients the subject of these complaints. He said that "the use of opioids in patients with suspected aberrant drug-related behaviours, psychosocial comorbidities, or history of substance abuse is only recommended if potential risks can be minimised" which requires expertise in dealing with addiction or mental health issues. There is a potential for serious harm related to the abuse potential of opioids particularly when used in conjunction with benzodiazepines. In his report Dr Bittar outlined a number of studies which supported this proposition. The adverse risks included a heightened rapid and prolonged respiratory depression, greater than with each drug alone. The combination of these drugs was said to be associated with the occurrence of fatal and non-fatal opioid overdoses. In prescribing Schedule 8 drugs in combination with benzodiazepines Dr Bittar said that this should occur for a limited length of time, and for intermittent use and that information should be provided to the patient about the potential risk of dependency and withdrawal if use for longer than a few weeks, the effects on the emotions and possible impairment of concentration and memory, the possibility of rebound insomnia and anxiety when ceasing to use benzodiazepines, the effects when used with other drugs, and the risks associated with driving or working with heavy machinery.
Dr Bittar then proceeded in his report to deal with the circumstances of each of the patients whose treatment by the respondent is the subject of these proceedings. We shall refer to his opinion when dealing in general terms with each of the patients. In doing so we are conscious that the respondent has admitted each of the complaints and the particulars, which alleviates the necessity to consider in great detail their individual circumstances. However, it is necessary to make some reference to the circumstances so as to provide some understanding of the nature and extent of the respondent's admitted misconduct.
[3]
Patient A
The clinical records of the Dundas Valley Medical Centre indicate that this patient first consulted the practice on 8 November 2012, and consulted Dr Chong. There is a history of the patient suffering migraines for 25 years which were treated by pethidine. She received three injections a week when suffering migraine headaches. She appears to have been given an injection of pethidine and stemetil. The patient consulted the respondent on 12 November 2012. She brought in her own medication and the injections were administered by the respondent.
The respondent would have had available to her a brief history recorded by Dr Chong but her own notes recorded "prolonged migraine" and "discuss refer neurology - headaches" in addition to a reference that she had brought in her own medication, that the injections had been administered and that there was a "letter from own GP," there is in the file a handwritten letter from Dr Peter Skelton dated 22 September 2011 indicating that the patient suffered from migraine and that she was receiving pethidine injections as well as Stemetil.
The patient attended Dr Lo on 13 November 2012 and was given scripts for further pethidine injections. She was again seen by the respondent on 14 November 2012 complaining of severe persistent migraine. There is a notation in the notes of a lengthy discussion, the fact that the "regular GP" was on leave and that a referral letter was created to a Dr Shaun Watson a neurologist. A copy of the referral letter dated 14 November 2012 is on the patient's file. The clinical notes record constant and regular attendances by this patient at the practice complaining of migraine and receiving injections for Stemetil and pethidine. The patient was seen predominantly by doctors Chong and Lo. Indeed, there is no further record of this patient being seen by the respondent until 9 January 2013, when she was given injections of pethidine and Stemetil. The respondent saw her subsequently on an irregular and intermittent basis, her primary attention being given by other doctors in the practice. She continued to be administered pethidine and Stemetil for her migraines.
There are a number of letters from Dr Watson in the patient's file dated 28 March, 17 May, 4 October and 9 November 2013. All of these letters express concern about the frequency of headaches and the frequency of pethidine being administered to the patient. Dr Watson described the continuous use of pethidine as at 17 May 2013 as a "necessary evil". As at 4 October and 9 November 2013 Dr Watson was of the opinion that the continued administration of pethidine was "unacceptable" and he proposed a treatment plan to substitute alternative medication.
Dr Bittar was critical of a number of aspects of the respondent's treatment and interrelationship with this patient. He said that she had not taken any "meaningful history", and had not conducted a physical examination. Dr Bittar said that the respondent should have taken a full history of the migraine attacks, strength, duration and site of pain, facilitating factors and the like and that she should have explained to the patient "the possible connection between their physical and emotional problems and their long-term use of benzodiazepines. This connection gives people enormous encouragement for the future." In addition, Dr Bittar thought that the respondent should have outlined the elements of the treatment process including reduction in medication, alternative anxiety and sleep management and support through withdrawal. He thought that there were a number of treatment options available to the patient including withdrawal facilities, counselling and telephone support and that the respondent should have informed the patient about the treatment plan including length of time between visits, the proposed reduction program, relaxation techniques, anxiety management and coping skills and the like. He thought that the failure to perform any of this was "significantly below the standard and would attract my strong criticism." Furthermore, the respondent had failed to follow up her referral to Dr Watson.
In the opinion of Dr Bittar pethidine was not a suitable drug with which to treat this patient and its prolonged use was not advisable. He said that prescribing pethidine in the amounts and frequency which occurred at the practice would constitute a significant deviation from the standard and would attract his strong criticism. He thought that the respondent was at fault by following the prescribing pattern of her senior colleagues in the practice. In his opinion the respondent should not have followed the prescribing habits and the nature of the medical records established by the other doctors in the practice. Even though during her later treatment of this patient the respondent was at that stage inheriting a trend established by other doctors in the practice, Dr Bittar expected that she would form her own personal opinion about the appropriate treatment of this patient and that she should have discussed this with her senior colleagues. She should have sought out the specialist opinions contained in the patient notes, reviewed them and discussed them with her senior colleagues.
Dr Bittar noted that the respondent did not hold an authority under section 28 of the Therapeutic Goods Act to administer drugs of dependence to a person who was clearly drug dependent. In addition he was critical of her medical records which lacked "comprehensive history, meaningful assessment, management plan, other modalities of treatment, relevant clinical findings, expected process of review, preventative measures." He thought that this was significantly below the standard and would attract his strong criticism.
In her written statement the respondent admitted all of the particulars contained in the amended complaint and accepted that she did not have an authority to issue prescriptions for pethidine injections. She sought to ameliorate her admitted misconduct by pointing to a number of matters including the fact that this was a difficult patient suffering from uncontrollable migraines over many years for which she habitually received pethidine injections on a regular basis, that she had been referred to a neurologist and other specialists and had been hospitalised with a view to weaning her off pethidine, that she was not the regular medical practitioner of that patient and that she was continuing treatment afforded over a long period of time by other doctors in the practice.
We agree with the assessment of Dr Bittar that the poor treatment afforded to this patient by other doctors in the practice did mitigate, but did not excuse the misconduct of the respondent. We would add that the respondent first saw this patient at a very early stage in her attendance for treatment at the practice and that at that early stage she had a clear opportunity of properly assessing the patient and embarking upon a course of conduct directed towards a better outcome than a regime entailing the habitual use of a drug of dependency. Even though the respondent initiated a referral to a specialist at an early stage, she did not follow this up in any way.
[4]
Patient B
This patient had attended the practice over many years and the clinical records made available to us show continuing attendances dating back to early 2000. He first attended on the respondent on 11 January 2012. She recorded a history of a left shoulder dislocation and rib pain. The dislocation had been reduced in hospital. There was a notation that Panadeine Forte had not worked and that he had been afforded some relief on Endone. The respondent prescribed 20 Endone 5 mg strength to be taken twice a day. The patient attended on other doctors at the centre on 13 and 17 January 2012 and again consulted the respondent on 18 January. There is a notation that he requested Endone for the pain in his left shoulder and this was refused. However, on 23 January the respondent issued a further prescription for 20 Endone 5 mg one to be taken twice a day, and issued further scripts in the same quantities on 30 January, 20 February, 5 March, 14 March and on many subsequent occasions. This was despite the fact that in the interim this patient was also attending other doctors in the same practice and was being prescribed a variety of medication including Endone. Subsequently, the respondent prescribed a regime of OxyContin 80 mg tablets one to be taken twice a day. The prescriptions were for 28 tablets, with a notation that only 14 were to be dispensed on each occasion.
There is one instance of a prescription for OxyContin being issued as a non-PBS prescription. The respondent said that she did so because there was a higher cost associated with it and that this would act as a deterrent to the patient.
There are a number of entries made by the respondent in the clinical notes which are of interest. On 28 May 2012 the patient consulted her after attending hospital with an injury to the left wrist. She prescribed 40 mg of OxyContin. There is a notation "no further OxyContin until hospital letter presented." The respondent prescribed Mogadon on 30 May, and Endone 5 mg on 6 June. The patient again attended on 13 June. There is a notation that he had been seen at an orthopaedic clinic and that "pain better." Notwithstanding this the respondent prescribed 40 mg of OxyContin and 5 mg of Valium. The patient again attended the respondent on 18 June complaining of chest wall pain associated with coughing. In addition to codeine phosphate linctus the respondent prescribed Mogadon 5 mg and Endone 5 mg. There is no notation of any condition justifying the issue of the scripts, other than, presumably, by reference to the chest wall pain. The patient next attended on the respondent on 25 June complaining of worsening left chest pain. The respondent issued a prescription for OxyContin 80 mg, with a notation that only 14 tablets were to be dispensed on each occasion. The patient was diagnosed with pneumonia on 27 June and prescribed antibiotics. On 4 July the patient said that there was a small improvement, that he still had chest pain on coughing but declined to go to hospital. He was again prescribed 80 mg OxyContin. On 11 July the patient was prescribed 40 mg OxyContin even though there was some improvement in the chest wall pain. On 16 July he was given a prescription for 80 mg OxyContin, again despite some improvement in his chest pain. On 18 July the patient attended following a family situation in which he was described as "angry distressed anxious." There is a notation of a lengthy discussion and that the respondent would not provide any further OxyContin. She prescribed Valium. However, on 23 July the patient was prescribed 80 mg OxyContin with a notation that the distressful family situation was continuing. There are continuing notations of attendance by this patient on the respondent for a variety of injuries, for most of which she prescribed OxyContin 80 mg. There are also notations of this patient seeking scripts for 80 mg OxyContin because he had left his medicine at a friend's house, he had lost his medicine, he had taken 4 tablets in a day after an argument with a family member and that the medication had been stolen or lost.
The respondent was continuing to prescribe OxyContin for this patient up until June 2014. This was notwithstanding the fact that on 13 December 2013 the respondent received a letter from the Pharmaceutical Benefits Branch indicating that this patient had been identified under the Prescription Shopping Program. An accompanying table indicated that the patient had been prescribed drugs of addiction by 8 different prescribers between the period 1 July and 30 September 2013. There is a notation on the letter that the matter had been discussed with the patient and that he was to be weaned off the medication "as planned." Another letter from the Pharmaceutical Benefits Branch was forwarded to the respondent dated 6 March 2014 with respect to the same patient. This listed 10 prescribers who were prescribing drugs of addiction for the period 1 October to 31 December 2013.
The respondent could have been in no doubt that this patient was drug dependent, not only because of his drug seeking behaviour but also in a referral letter to a hospital dated 21 May 2012 the respondent had noted a past history dated 14 October 2004 of "benzodiazepine dependence."
In his report concerning this patient Dr Bittar noted that the prescription records showed the respondent as having prescribed
2160 5 mg diazepam tablets on 45 occasions between 22 February 2012 and 16 June 2014
675 5 mg oxazepam tablets on 27 occasions between 12 September 2012 and 19 February 2013
460 5 mg nitrazepam tablets on 20 occasions between 18 February 2012 and 16 June 2014
380 5 mg oxycodone tablets on 19 occasions between 11 January and 18 June 2012
490 40 mg oxycodone tablets on 15 occasions between 28 May 2012 and 30 June 2014
1606 80 mg oxycodone tablets on 44 occasions between 25 June 2012 and 17 February 2014
60 10 mg temazepam tablets on three occasions between 6 February 2012 and 30 September 2013.
Dr Bittar was highly critical of the respondent. She recorded no examination of the patient's dislocated shoulder, and whilst there were previous notations of drug dependency she did not refer the patient for specialist drug management or pain management until 19 February 2014. Furthermore, she had failed to record reasons for issuing benzodiazapines for anxiety, stress and insomnia, the number of injuries reported "should have alerted the prescriber to the possibility of drug seeking behaviour", and her clinical notes lacked detailed description of each injury.
In addition, the respondent continued to prescribe OxyContin at much shorter intervals than was justified by reference to the dose which she had prescribed. In many cases the period of treatment "exceeded the logical period expected for the pain to get better." The respondent failed to conduct a comprehensive assessment and a regular review of the treatment regime being afforded to this patient, especially because he was being prescribed benzodiazepines over a long period of time. The respondent also failed to consider drugs prescribed for this patient by other doctors in the practice who were attending upon him. In the opinion of Dr Bittar, this patient had clearly exhibited drug seeking behaviour and was drug dependent. Not only did the respondent failed to recognise this, she failed to obtain the requisite authority for the administration of these drugs of addiction.
Dr Bittar said that the respondent's medical records were substantially below the relevant standards and there was no apparent reason for the prescribing pattern which she administered to this patient.
In her statement, the respondent referred to a number of occasions upon which she had consulted with this patient for distinct injuries. She was able to recollect some detail concerning these injuries, although not all of them are set out in the same detail in her clinical notes. The first notation in the respondent's statement of any discussion that she had with this patient concerning the substitution of pain relief medication for drugs of addiction was said to have occurred on 25 November 2013. However, the respondent said that "On multiple occasions, I refuse to prescribe OxyContin in advance, and repeatedly discussed and attempted to wean patient B off OxyContin use. On 21 August 2013, 14 October 2013, and 23 December 2013, I had a lengthy discussion with patient B in relation to weaning him off OxyContin, and on 23 December 2013, I reduced patient B's OxyContin dose to one daily." The respondent made further reference to discussions with this patient in January and February 2014 concerning a staged program to wean him off OxyContin.
[5]
Patient C
The practice clinical records indicate that this patient received treatment from March 2010 under a number of medical practitioners. Initially he received frequent and regular prescriptions for Valium which were continued by the respondent when she first consulted the patient on 23 March 2013. From 27 August 2013 the patient commenced to be prescribed OxyContin 40 mg and later at varying doses by other doctors in the practice. The respondent issued a prescription for 40 mg OxyContin on 16 October 2013. The previous consultation had been with Dr Chong on 4 October 2013 who had made notes that the patient needed to be cut back on the amount of OxyContin being prescribed because he "has trouble keeping to his dose." On that occasion Dr Chong prescribed OxyContin 20 mg. Despite these notes appearing in the practice records for that consultation the respondent prescribed 40 mg OxyContin but changed the dosage from two tablets a day to once daily. The patient again saw Dr Chong on 24 October who prescribed Valium and Mobic, but not OxyContin. He saw the respondent again on 4 November who was seeking OxyContin for his left knee pain. The respondent made notes of the presence of a Baker's cyst and a mildly swollen knee joint. She suggested a treatment plan and made a note that the OxyContin "not for long-term use." She issued a prescription for 40 mg OxyContin to be taken once daily and made a further notation "no further prescription from me unless proceed as above", being a reference to the suggested treatment. The patient consulted the respondent again on 11 November on which occasion she declined to issue a prescription for OxyContin. Dr Chong declined to prescribe OxyContin on 21 November. The patient again attended the respondent on 4 December seeking OxyContin. She noted that this would be the "last prescription" and prescribed 40 mg OxyContin to be taken twice a day. That is, the respondent doubled the prior dose which had been prescribed by her. The patient consulted Dr Chong on 19 December requesting OxyContin, which he refused. However on 23 December he again attended on the respondent requesting OxyContin. The respondent made a note that she had issued a private and last prescription for OxyContin and prescribed 40 mg once a day. On 13 January 2014 she again prescribed OxyContin 40 mg, but this time at a dose of twice a day. On 24 January the patient consulted Dr Lo who prescribed OxyContin but made a notation that he would not prescribe any more of this drug to the patient. On 31 January the patient consulted Dr Chong who declined to issue any more scripts for Valium, although it appears that he did write one script on that occasion. The patient then attended Dr Paw in the practice on 19 February who thought that the patient may have been "faking" his complaints. He refused to issue a prescription for OxyContin but prescribed Valium "given only this time." The patient attended the respondent on 5 March complaining of continuing problems with his left knee. There is no reference to any examination being conducted in her notes. She issued a prescription for OxyContin 40 mg one tablet twice a day. The respondent next saw the patient on 12 March. Her notes appear to say that the patient walked in with a crutch, but seemed to walk out without using it. Her notes indicate that he seemed drunk, and was depressed because a close friend was diagnosed with terminal cancer. There is no notation in the records of any examination or diagnosis. The respondent gave the patient a prescription for 40 mg OxyContin one tablet twice a day. She issued the same prescription on 26 March noting that she was reviewing the patient's pain relief with an aim to wean him to 30 mg OxyContin. In fact, the respondent issued a prescription on 16 April for oxycodone 30 mg one tablet twice a day with a notation that a treatment plan included low-dose OxyContin for 1 to 2 months.
In his report Dr Bittar noted that the respondent had prescribed the following substances for this patient namely;
550 5 mg tablets of diazepam on 11 occasions between 2 April 2013 and 23 June 2014
84 tablets of oxycodone 30 mg on three occasions between 16 April 2014 and 23 June 2014
224 tablets of oxycodone 40 mg on eight occasions between 16 October 2013 and 23 March 2014.
Dr Bittar noted that this patient was first registered on an AOP program on 21 February 2003 until 1 December 2003 and was reregistered by a medical practitioner in another practice on 11 October 2013.
Dr Bittar was strongly critical of the respondent in prescribing diazepam on a regular basis from 23 January 2013 because her medical records did not disclose any assessment or reason for prescribing this drug, nor the progress of the patient's symptoms. He thought that it was not sufficient for her to rely on previous notes and the prescribing pattern of her "senior colleagues" at the same practice. Furthermore, the respondent had failed to refer the patient for management of his drug seeking behaviour and his need for long-term oxycodone. He denied that a Baker's cyst or osteoarthritis of the knee could properly be treated with oxycodone and diazepam.
Dr Bittar thought that the duration of treatment by the respondent given that the patient demonstrated "many signs of dependency" and had been registered on OTP was unacceptable. Furthermore, she required authorisation under the Therapeutic Goods Act, which she admittedly had failed to do. It was also inappropriate for the respondent to have prescribed benzodiazepines in combination with oxycodone.
Dr Bittar also thought that the medical records maintained by the respondent were substantially below the relevant standards "in the vast majority of consultations. No documented assessment of reason for prescribing, frequency and intensity of pain, factors increasing or decreasing it." There was no comprehensive history, meaningful assessment, management plan, a reference to other modalities of treatment, clinical findings, and an expected process of review together with preventative measures. Furthermore, there was no clear indication of the reason behind the respondent's prescribing pattern.
In her written statement concerning this patient the respondent relied on a continuation by her of treating patterns established by other doctors in the same practice. She said in part "I issued patient C with prescriptions for OxyContin 40 mg on eight occasions from 16 October 2013 until 26 March 2014. On each occasion, I prescribed OxyContin for patient C to treat patient C's knee pain. On each occasion, I informed the patient C that I would not provide patient C with further scripts for OxyContin unless patient C proceeded with the treatment plans that I had prepared for patient C." It was not until 23 July 2014 that the respondent said that she had formed the view that the patient was not following her treatment plans and that she would not provide him with further scripts for OxyContin.
[6]
Patient D
The clinical records indicate that this patient first saw the respondent when she attended the practice. The clinical notes record that on 18 June 2012 the patient attended her complaining of recurrent right shoulder pain over the previous five months which was becoming worse. The patient was referred to an orthopaedic specialist and prescribed an antibiotic as well as, on an initial basis, 80 mg of OxyContin one tablet daily. On 27 June the patient attended on the respondent stating that she could not afford to see an orthopaedic specialist. On 2 July 2012 she was again prescribed 80 mg of OxyContin together with Panadol Osteo. On 16 July the patient was referred by the respondent for pathology tests and again issued with OxyContin 80 mg one tablet a day. The patient saw another doctor in the practice on 30 July and was again given a prescription for OxyContin 80 mg. On 22 August the clinical notes indicate that the patient consulted the respondent for counselling so that she could cease smoking. She was prescribed Nicorette patches and in addition an anti-inflammatory as well as OxyContin 80 mg one tablet a day. The patient saw the respondent on 5 September complaining that she was allergic to the Nicorette patches. She was prescribed OxyContin 80 mg one tablet a day. Further scripts were issued for 80 mg of OxyContin on 19 September, 3 October, 17 October, and 28 November. The patient was seen by another doctor in the practice on 24 December 2012 and 24 January 2013 and continued to be prescribed OxyContin. The respondent issued a prescription for OxyContin 80 mg on 20 February 2013. On 21 March 2013 Dr Chong issued a prescription for 80 mg OxyContin but made a notation that the patient was to see the respondent "next time to wean off OxyContin card given from receptionist to remind her of the days that Dr Chen is working." The patient did attend the respondent again on 17 April. The respondent noted that the patient complained of continuing pain and stiffness in a shoulder, and made a notation concerning reference to a physiotherapist and a pain clinic. On 29 April the respondent issued a medical certificate. On 20 May the respondent made a note of continuing complaints of shoulder pain and stiffness which were not in proportion to a physical examination and findings on imaging. She thought that there was an additional "psychological factor." The clinical notes record that the patient then became distressed concerning her relationship with her spouse. The patient's OxyContin 80 mg dosage was changed from once-a-day to a half tablet twice a day. On 19 June there is a notation of a "lengthy discuss" concerning OxyContin addiction with a plan to wean her off this drug. Nevertheless, the respondent prescribed 80 mg OxyContin but changed the dose to ½ a tablet per day. After several further consultations the respondent referred the patient to a pain management specialist on 2 October.
Dr Bittar noted that the respondent had failed to follow up any documentation of referrals that she had made to orthopaedic specialists and to a pain management specialist. He thought that the continuing prescription of high doses of OxyContin was inappropriate and that the attempts made by the respondent to reduce the dosage were "inconsistent." He was strongly critical of the respondent in this respect. It was the opinion of Dr Bittar that this patient was drug seeking because she had approached a number of different doctors in the practice.
There was one occasion when the respondent had prescribed Pethidine to this patient and had done so without an authority.
Dr Bittar thought that the respondent's medical records lacked "any significant assessment or evaluation of the patient's symptoms or her reason for not following a doctor's plan of action." In addition, the respondent should have not relied on the patient to cut a tablet in half and should have monitored the patient more closely to ensure that she was not in fact increasing the patient's drug dependency.
In her statement the respondent said that she did not appreciate that cutting a tablet in half might alter its "mechanism."
[7]
Patient E
Dr Bittar noted that the respondent had prescribed 56 tablets of oxycodone 80 mg on two occasions between 13 March and 17 June 2013. The patient had suffered from fractures, anxiety and depression. He noted that the patient had "inherited" the care of this patient when other practitioners were unavailable. The patient had previously been prescribed oxycodone and benzodiazepines "in a quantity, dose and variety that is irresponsible and excessive to any sound clinical indication." The respondent continued this treatment without making any meaningful assessment of her own, and without recording any examination or clinical findings, although she did reduce the dose. Dr Bittar was not strongly critical of the respondent's conduct in this regard.
Dr Bittar was strongly critical of the standard of the respondent's clinical notes, as she conceded. He thought that she should have recognised that this patient was drug dependent and drug seeking.
The respondent did not see this patient until March 2013. If she had examined the clinical notes she would have seen a letter from Dr Geoffrey Needham a rehabilitation specialist dated 4 May 2005. Dr Needham said that the patient had "ongoing reliance on opiates -containing analgesic medications as well a significant level of benzodiazepine consumption……. I would recommend against any escalation of oxycodone medication beyond 40 mg bd and I would recommend that it is essential his opiates prescribing be restricted to a single practitioner who holds PBS authorisation." Such a letter should, and hopefully would have alerted the respondent to the fact that this patient had had underlying problems associated with opiates since before 2005. It should also have alerted the respondent to the necessity to obtain some form of authority to dispense medication of this kind. When asked in evidence why she had not ever seen that letter the respondent replied that it dated back to 2005. This was consistent with her practice of only reading the notes of the last two or three consultations. In our opinion, whether a medical practitioner is performing a "fill-in role" or not, the practitioner has the same obligation as any other practitioner to become acquainted with any circumstances which will affect diagnosis, treatment and the implementation or administration of a treatment management plan. The circumstances of this patient provide another example of the failure of the respondent to so conduct herself.
[8]
Patient F
Dr Bittar noted that the respondent had prescribed 1008 oxycodone 40 mg tablets on 35 occasions between 22 October 2012 and 23 June 2014. The patient was suffering from hyperthyroidism, depression, hepatitis C and chronic knee problems. The patient had been registered on the OTP program continuously since March 2009.
Dr Bittar was strongly critical of the history taken by the respondent and the assessment of the patient's condition before prescribing oxycodone. Furthermore, she should not have prescribed oxycodone initially without first attempting simple analgesics or less potent analgesics. He was strongly critical of the duration of the treatment regime without continuous assessment and a trial of other drugs. The respondent's medical notes were so brief that it was difficult for Dr Bittar to meaningfully assess the circumstances of this patient and the quality of the treatment generally afforded by the respondent.
In her statement the respondent referred to the fact that other practitioners had also treated this patient. She tellingly said "The other Practitioners largely continued the treatment I was providing to patient F during this period." This is clearly indicative that the respondent was capable of and did initiate treatment regimes for some patients at the practice.
[9]
Patient G
Dr Bittar noted that the respondent had prescribed the following medication to this patient who was diagnosed as suffering from lower back pain and stress;
1735 diazepam 5 mg on 36 occasions between 23 January 2000 and 16 June 2014
850 nitrazepam 5 mg on 34 occasions between 20 June 2012 and 30 June 2014
280 oxycodone 5 mg on one occasion
112 oxycodone 10 mg on four occasions
28 oxycodone 15 mg on one occasion
48 oxycodone 20 mg on two occasions 168 oxycodone 30 mg on six occasions
532 oxycodone 40 mg on 22 occasions between 3 December 2012 and 11 November 2013.
Dr Bittar was strongly critical of the failure of the respondent to carry out an appropriate examination of the patient's lower back or of the level of the stress for which she prescribed diazepam. There was no documented reason to upgrade the level of OxyContin which was being prescribed. Furthermore, even though the respondent had referred the patient to a physiotherapist in May 2012, there was no referral to a drug and alcohol specialist until 2014, two years after treatment had been commenced. This invited the strong criticism of Dr Bittar.
Dr Bittar noted that the respondent had followed the pattern of prescribing and the standard of medical records kept by the more senior members of the practice.
Dr Bittar thought that it was inappropriate for the respondent to have provided scripts for this patient before the relevant due date over a very long period and he noted that in some cases private scripts were provided in addition to a PBS prescription. He was strongly critical of this conduct. In the opinion of Dr Bittar this patient exhibited drug seeking behaviour in endeavouring to seek out other doctors in the practice and the respondent failed to respond appropriately to this. He was also strongly critical of the standard of the medical records kept by the respondent.
In her statement the respondent noted that from the first half of 2014 she continued to work with this patient to reduce her dependence on OxyContin and the dosage was gradually reduced from 30 mg to 10 mg daily. It is not necessarily surprising that the respondent would have taken measures to reduce the patient's drug dependence, because the Pharmaceutical Benefits Branch wrote to her on 14 February 2014 informing her that the patient had obtained more medicine under the PBS than was medically required during the period 1 September to 30 November 2013. A schedule provided by the PBB indicated that 11 different prescribers had been involved in the provision of medication to this patient during that period.
[10]
Patient H
Dr Bittar noted that the respondent prescribed 15 tablets of oxycodone 80 mg to this patient on two occasions on 8 February and 14 March 2012. During this time the patient was registered on the OTP program.
This patient had previously been seen by other doctors in the practice. There is no notation in her clinical notes as to why the patient consulted the respondent on 8 February 2012 although there is a reference to a lumbar CT. The patient had previously been prescribed 80 mg OxyContin to be taken one twice a day. The respondent changed this to a half tablet twice a day, but there was no indication why she did so. The patient next consulted the respondent on 13 February seeking OxyContin which the respondent refused. On 14 March the respondent noted that the patient was seeking OxyContin, had not brought with her previous lumbar CT, and had made contact for "acne". For reasons which are unexplained in the notes the respondent issued a prescription for 80 mg of OxyContin ½ to be taken twice a day.
Dr Bittar was strongly critical of the failure of the respondent to make any meaningful assessment or document any physical examination prior to prescribing OxyContin. He said it was inappropriate for her to have kept on supplying a prescription for OxyContin without full assessment, documented management plan and notifying the relevant authorities.
[11]
Patient I
Dr Bittar noted that this patient had been prescribed the following medication;
250 Alprazolam 2 mg on six occasions between 27 February and 23 December 2013 as a Schedule 4 substance and 100 Alprazolam 2 mg on three occasions between 17 February and 23 March 2014 as a Schedule 8 substance
50 Diazepam 5 mg on 25 June 2014
The patient had been diagnosed as suffering from anxiety, panic attacks and depression. Dr Bittar was strongly critical of the failure of the respondent to document the past history of the patient's disorders, the frequency of attacks, any aggravating or precipitating factors, her social situation, supports and previous treatment. The failure to refer the patient to a psychiatrist until 14 months after the patient commenced consulting the respondent also attracted Dr Bittar's strong criticism. He was also strongly critical of the choice of Alprazolam to treat the patient, and the fact that at one stage she prescribed double the appropriate quantity by issuing a PBS prescription and a private prescription. In any event, it was inappropriate to prescribe this drug because the patient was registered on OTP at the relevant time. Overall, Dr Bittar was strongly critical of the treatment, or lack of it, afforded by the respondent to this patient. He said that she failed "to take responsibility of the patient's addiction and take measures to monitor, replace and introduce other modalities of treatment and follow-up and obtain an authority." In addition, her medical records were significantly below the relevant standards.
In her statement the respondent said that she was not the regular doctor treating the patient and said that she thought that there was a clinical basis for the treatment which she had rendered.
[12]
Patient J.
Dr Bittar noted that the respondent had prescribed the following medication to this patient;
5 Fentanyl patches, which is a Schedule 8 substance, between 12 December 2012 and 1 July 2013
50 diazepam 5 mg on 2 April 2012 and 6 May 2013
20 oxycodone 5 mg on 2 April 2012
The patient had been diagnosed suffering from anxiety, depression, insomnia, back pain, osteoporosis and Marfan's Syndrome. Dr Bittar was strongly critical of the failure of the respondent to document an appropriate assessment on the first occasion that he consulted her. He thought that she should have undertaken investigations to confirm osteoporosis and afforded treatment to prevent further fractures as well as a referral to a drug and alcohol specialist because of the patient's history of dependency. He was strongly critical of this failure and the failure to afford what he thought was appropriate treatment. Dr Bittar noted that the respondent only saw this patient when his regular doctor was unavailable.
Dr Bittar was also strongly critical of the failure of the respondent to obtain an authority to prescribe oxycodone, to prescribe diazepam whilst the patient was on narcotics and registered on OTP and demanding early scripts.
In her statement the respondent said that she had merely followed the treatment regime initiated by the patient's regular treating doctors in the practice and that she had only treated this patient on a limited number of occasions.
[13]
Patient K
The respondent and other doctors in the practice had prescribed diazepam as well as MS Contin to this patient who was, and had been primarily treated by her general practitioner in Queensland. She was being treated for cellulitis and benzodiazepine and opiates dependency. Dr Bittar's strong criticism of the respondent was limited to the prescription of oxycodone without an authority and in conjunction with diazepam, and the continuing provision of opiates even though there was a notation in the file that no more prescriptions would be issued.
In her statement, the respondent said that she had discussed a plan with this patient to reduce her drug dependency.
[14]
Patient L
Dr Bittar noted that the respondent prescribed the following medication to this patient for treatment of chronic back pain;
336 oxycodone 20 mg tablets on 13 occasions between 12 November 2011 and 25 November 2013
14 oxycodone 40 mg tablets on 13 November 2013
84 oxycodone 80 mg tablets between 2 November and 17 December 2013.
This patient had been registered on the OTP program between 2008 and 2010 and was reregistered on 6 February 2014.
Dr Bittar was strongly critical of the respondent in the documentation of her assessment on her first consultation as being "severe pain." There was no notation of any past history, mode of injury, previous management, aggravating or relieving factors, relevant history, review of imaging and plan for future management. Furthermore, the respondent did not refer the patient to a specialist for chronic back pain and this was undertaken by another doctor in the practice. He thought that there was no justification to prescribe Schedule 8 drugs for a long period given the inconclusive diagnosis on the CT lumbar spine. Furthermore, the respondent issued prescriptions before the relevant due date. All of this invited Dr Bittar's strong criticism. In addition, there were a number of other instances which indicated that the patient was drug seeking including a claim that certain medication did not work and claiming that he had been robbed. There was documentation in the file from the Pain Management Clinic at Westmead Hospital that indicated that the patient was on a methadone program and should not be prescribed oxycodone. The continuing prescription of oxycodone by the respondent therefore invited Dr Bittar's strong criticism. This was compounded by her failure to obtain the necessary authority to do so.
In her statement the respondent said that the practice had received a telephone call from a pharmacist in December 2013 indicating that the patient had presented fraudulent scripts for OxyContin. She subsequently advised the patient that she would not issue a prescription for OxyContin and she ceased to treat him.
[15]
Patient M
Dr Bittar noted that the respondent had prescribed the following medication for this patient;
175 tablets of Alprazolam 2 mg, (a Schedule 4 substance, which became a Schedule 8 substance from 1 February 2014), between 4 March 2013 and 3 March 2014
100 diazepam 5 mg tablets between 21 October 2012 and 23 April 2014.
Dr Bittar was strongly critical of the failure of the respondent to carry out a meaningful assessment of the patient's anxiety "status". The clinical notes for this patient indicate that she had been treated at the practice since 2002 for a variety of conditions. The respondent appears to have first consulted with the patient on 4 March 2013. The respondent's clinical notes indicate that the patient presented suffering from anxiety and a panic disorder as a result of being the victim of domestic violence. The respondent prescribed Xanax. The only other notation in the clinical notes is "counselling". The respondent again prescribed Xanax on 20 March 2013. On 19 April the patient attended on Dr Chong who made a notation of a discussion with her "regarding Xanax." and for a need to monitor this. There was a notation to wait for a month before the next prescription was issued. The patient attended on the respondent on 20 May 2013 and received a prescription for Xanax. There is no indication in the notes as to the reason why this medication was prescribed on this occasion.
There were a number of subsequent attendances by this patient on various doctors within the practice. On 11 June 2013 Dr Chong made a note that he would give her one more prescription of Xanax but she would need to see other doctors in the future about a prescription for that substance. In fact, another doctor in the practice prescribed Xanax on 25 June 2013. On 22 July the patient attended on the respondent complaining of lower back pain and "panic attacks" and was given a prescription for Xanax. On 24 July, two days later, the patient attended on the respondent seeking OxyContin for her lower back pain. There is a notation in the clinical notes that the respondent discussed alternative medication with the patient and prescribed Tramadol. There are subsequent instances of the respondent prescribing Xanax for this patient.
Dr Bittar was strongly critical of the respondent for failing to refer the patient to a specialist for prolonged anxiety, and for continuing to prescribe Alpazolam for more than 12 months because that drug should only have been prescribed for short term symptomatic treatment of anxiety. In addition, Dr Bittar was strongly critical of the respondent in prescribing Alprazolam after it became a Schedule 8 drug without an authority, and in prescribing it together with diazepam to a patient registered on the OTP. Dr Bittar noted the once the patient had been refused narcotics on 20 August 2014 and had been referred to a pain clinic she never visited the practice again.
In her statement the respondent said that at the time that she treated this patient she was not aware that she was on an Opioid Treatment Program.
[16]
Patient N
The clinical notes for this patient indicate that he had been treated for a variety of conditions since November 2009. He appears to have first been attended by the respondent on 6 May 2013. If the respondent had perused the clinical notes she would have seen that firstly the patient had been prescribed OxyContin 80 mg by a number of doctors in the practice dating back to 2009 and that since early 2013 Dr Chong had been reluctant to satisfy the patient's demands for OxyContin. When the patient first consulted the respondent on 6 May 2013, she made a clinical note that there was "no obvious recent reason" to prescribe 80 mg of OxyContin. The patient complained to her of lower back and neck pain and of multiple gunshot injuries to both legs and she prescribed OxyContin 40 mg. The respondent continued with this medication on the same dose on 22 May and 3 June 2013 and again in February and March 2014.
Dr Bittar was strongly critical of the respondent for prescribing 40 mg oxycodone, albeit it was half of the previous dose, without any obvious reason for doing so. He was also strongly critical of the duration of the prescription of this drug and the fact that the respondent did not possess an authority to issue it.
In her statement the respondent defended the prescription of OxyContin 40 mg on the basis of the patient's neck and lower back pain and a history of multiple gunshot injuries.
[17]
Patient O
When this patient attended on the respondent on 29 January 2014, it was the third occasion on which she had attended the practice. Her clinical notes indicate that he presented with a letter from a pain clinic dated November 2013 and that he had been abusing high dosage of OxyContin for some years. The second page of that letter is available in the clinical notes. There is a recommendation that a staged reduction program be implemented for this patient and that he does not receive the scripts for OxyContin, and recommends that they be delivered directly to the pharmacy. The respondent made a note that he would be issued only with OxyContin 40 mg to be taken one tablet twice a day but there is no indication that the prescription was forwarded directly to a pharmacy. The patient attended another doctor at the practice on 5 February 2014 and was refused OxyContin. He attended on the respondent on 24 February and argued that he should be given OxyContin 80 mg. The respondent gave him a prescription for 40 mg tablets which, the notes indicate, he took and walked away angrily. The respondent again gave the patient a prescription for 40 mg OxyContin on 19 March 2014 and asked that he not see her again.
The principal criticism made by Dr Bittar is the fact that the respondent lacked an authority to prescribe OxyContin. However, it is clear that this patient had a documented history of dependency upon OxyContin, as was clearly revealed in the letter from the pain clinic. To this extent we are comfortably satisfied that the respondent either knew or should have known that this patient was exhibiting drug seeking behaviour and that the OxyContin prescribed by her was or was likely to be abused.
[18]
Dr Chong
Dr P Chong appears to have been the subject of a complaint brought by the HCCC arising out of his prescription of drugs of addiction at the same practice at which the respondent was engaged. In a letter to the HCCC which appears to have been sent around 15 December 2014 Dr Chong explained that he finished his GP registrar training in June 2012 and that the first practice that he had worked at was the Dundas Valley Medical Centre. He said it was there that he was first confronted with prescribing OxyContin and long-term pain management medications, and had limited experience in this area prior to this. He said that he initially sought advice from the two primary principal GPs in the practice whom he described as having been practising "for nearly 40 years and had been GP registrar supervisors in the past. I felt I was seeking the advice from the most appropriate and experienced people at the time." Dr Chong said that it was his understanding at the time that unless patients were considered to be drug addicts there was no requirement to seek an authority under the relevant legislation. He acknowledged that he was incorrect.
[19]
The respondent's general evidence
In a written statement the respondent said that there were five general practitioners at the Dundas Valley Medical Centre whom she named as Doctors Lo, Nighjoy, Chong, Paw and herself. She said that she was, on reflection, "too dependent on Dr Lo and Dr Nighjoy for professional guidance and too subservience to them in relation to my prescribing during my period (at the centre). I think this dependency and subservience resulted from a lack of knowledge about drugs of addiction and drug addicts and my knowledge that Dr Lo and Dr Nighjoy had far greater experience than me as a general practitioner." She said that her dependency resulted in her prescribing consistently with them and following the initial prescription by them. Despite this the respondent accepted responsibility for her misconduct. She said that she did not know how to appropriately prescribe drugs of addiction to difficult patients including drug seeking patients and that she may have allowed herself to have been bullied by patients.
The respondent contrasted her engagement at the Dundas Valley Medical Centre with her current practice in Campsie. She said that she now encountered "a diverse mixture of ages and ethnicities. I would estimate that over 60% of my patients are females and I believe this is because they trust my expertise in women's health and are comfortable with my consultations." Furthermore, the respondent said that she had now familiarised herself with the requirement to obtain an authority from PSU before prescribing drugs of addiction and was familiar with the other protocols which could assist her such as the Doctor Shopper hotline. She had also attended a number of webinars and other courses and had read voluminous documentation in order to gain appropriate knowledge in dealing with patients who were drug seeking or drug dependent.
The respondent said that she had read a number of decisions of this Tribunal which had helped her understand the risks to which she had exposed her patients as well as the statutory regime applying to the registration of medical practitioners. In addition, the respondent had attended a number of meetings with a general practitioner, Dr M Cai, with experience in drug addiction issues on four occasions between 11 June and 2 July 2016 and observed him treating patients with long-standing pain management issues. She also has a mentor relationship with Dr Allen Fang. She has attended weekly meetings with her mentor from 13 July 2016 and observed him providing treatment to his patients including those with pain management issues. She has also discussed the complaints brought against her with the mentor. In oral evidence, but not in her written statement, the respondent said that Dr Fang had inspected a number of her clinical records which had been selected by him. We note that neither Dr Cai nor Dr Fang provided a written statement, nor did they give evidence concerning their involvement with the respondent.
The respondent said that she is now more confident in her professional ability to appropriately prescribe drugs of addiction and to maintain adequate medical records. She had completed the requirements of the course "Issues in Prescribing in General Course" conducted by Monash University in about 16 October 2016.
The respondent also expressed shame and embarrassment by reason of her misconduct and the complaints brought against her.
In oral evidence the respondent said that after becoming qualified in 2003 she worked as an intern at Concord Hospital and rotated through a number of departments. She then worked as a resident in the same hospital. In her second year she worked in the emergency Department at Ryde Hospital as well as in the paediatric department.
After training as a GP in 2006 the respondent worked in a number of group practices and in 2009 gained her FRACGP. Between 2009 and 2012 the respondent commenced working two days a week at Castle Hill and three days a week at Dundas. In this latter practice she was a contractor between January 2012 and September 2015.
The respondent said that at Dundas Valley she encountered a large number of patients on narcotics or who had mental health issues. She had no experience of this type of patient and said that she "fell into line" with prescribing to those patients what they had previously been prescribed. She said that mostly she just carried on without questioning the medication regime which had already been undertaken. The respondent said she took over the care of some of the patients and never initiated the treatment of patients with drugs except for two. She did not know that any of the patients were on the OTP and was unaware that she could obtain information until she first received a letter from the PSU. She said she questioned other doctors in the practice about dealing with patients who were asking for drugs of addiction. She said that she spoke to some doctors in the practice and concluded that it was necessary to refer these patients to see a specialist, either a neurologist or someone specialising in detoxification.
In connection with some patients, the respondent said that she spoke to doctors Chong and Lo and followed their lead. We observe that there is not one reference to this in any of the clinical notes to which we have been referred.
In her oral evidence the respondent said that she encountered difficulties in completing her clinical notes at the Dundas Valley practice because the surgery closed promptly at 6 PM which did not allow her time to write up her notes properly. She conceded that "I did not pay much attention to medical record keeping" at Dundas Valley.
In cross-examination the respondent was asked whether she had discussed any of the difficulties that she was encountering with drug dependent or drug seeking patients at Dundas Valley with any of the fellow practitioners at Campsie. She said that she had not done so until after these complaints had been made against her.
The respondent said that whilst at Campsie one or two patients had required Schedule 8 drugs.
In terms of her attitude to the patients at Dundas Valley, the respondent said that she had a "fill-in role" and therefore did not make so much of an effort to treat them. She thought it was easier to give them the scripts than to spend some time working out what to do with them. She agreed that she did suspect some of the patients were drug dependent and drug seeking and that she did not always accept what the patients were saying to her about their desire for drugs. Notwithstanding this the respondent denied that she should have undertaken independent research herself to improve her knowledge of the administration of drugs of addiction. She merely followed the same pattern the prescribing without an authority used by the other doctors in the practice. However, when confronted in cross examination with the circumstances of patient A, the respondent said that she had referred this patient to a specialist of her own initiative. In the circumstances she conceded that she was not required to follow everything that the other doctors in the practice were doing.
When asked to elaborate on the influence exercised by other doctors in the practice, the respondent conceded that she had not had any particular discussion concerning the circumstances of any patient. The influence that was exercised by the other doctors consisted, therefore, of following their prescribing patterns.
The respondent conceded that she knew in 2012 and 2013 that oxycodone should not be used for the long-term treatment of chronic pain. She said that she wanted to cease prescribing this drug but found it difficult to wean patients off it. She said that she knew about pain specialists and detoxification services. However most of the patients did not attend on private specialists when referred, because they could not afford it.
Tellingly, the respondent said in answer to a question in cross examination that she would still be happy to prescribe OxyContin for acute knee pain, provided that she had an authority. This was despite the availability of other analgesics and non-steroid inflammatory drugs. The respondent later clarified this answer by saying that if she were called upon to treat chronic pain in a knee she would not initiate or continue narcotic analgesics, and would provide physical support and minimise any swelling. She then stated that she would prescribe Panadol osteo, glucosamine and fish oil complementary medicine.
The respondent insisted that on each occasion she prescribed drugs of addiction she had obtained a history of chronic pain, even though she may not have recorded this in her clinical notes.
When discussing the circumstances of particular patients, the respondent conceded that her failure to follow-up on ordering a number of procedures and in creating a number of referrals was unsatisfactory. In this context the respondent also said that when she was consulted by a patient she most commonly referred back to the last 2 to 3 consultations only. We observe that in doing so the respondent would have not been aware in a number of instances of very important information, such as observations by other treating doctors in the practice that OxyContin was no longer appropriate for a particular patient. We repeat that there are circumstances applying to some of the patients where clearly the respondent initiated a course of treatment different to that followed by other doctors in the practice. In terms of patients D and E, the respondent confirmed that when referring this patient to a pain clinic she had not consulted with Dr Chong. We observe that this is indicative that the respondent was not compelled in any way to follow the treatment or prescribing regimes of other doctors, nor did she really feel compelled to do so.
The respondent also conceded that she did not use a recall system at Dundas Valley in order to check up on referrals for patients and that she should have done so.
The respondent said that despite correspondence from the PSU, she had never used the Doctor Shopper hotline. We regard this as demonstrating a lack of insight at that time into her conduct.
The respondent contrasted her consultations with other practitioners at Campsie with that applying at Dundas Valley. She said that she now engaged in "informal chats" with other doctors about particular patients. However the details of these communications are scant, and are not corroborated.
[20]
Dr Yogen Patel
Dr Patel is a general practitioner engaged at the Campsie centre where the respondent also works. He provided a letter addressed to the respondent's solicitors dated 9 July 2016 which was tendered by the respondent into evidence on her behalf. That letter commences as follows; "I note, with disbelief, that Dr Chen is the subject of a HCCC complaint, relating to inappropriate prescribing drugs of addiction to patients in another surgery where she worked 2 days per week for a few years, and is alleged (sic) unsatisfactory professional conduct and professional misconduct." We assume that by the reference to "alleged", Dr Patel's disbelief does not reflect any knowledge of the fact that the respondent has pleaded guilty to each of the charges in the complaint and almost all of the particulars.
The letter from Dr Patel states that he is a general practitioner and has been working with the respondent at Campsie for over five years. Dr Patel then states; "we openly and comfortably communicate with each other, particularly regarding issues in general practice and patient management." He said that he was first informed by the respondent about the complaints the subject of these proceedings in July 2016.
Dr Patel was required for cross examination concerning the contents of this letter. In the course of his oral evidence Dr Patel said that he had never talked to the respondent about her practice at any other location, and had only mentioned whether she was busy or not. He had never discussed with the respondent the necessity to obtain an authority to dispense drugs of addiction. He was asked whether there had been any discussion about issues in the Campsie practice. He replied that he may have asked her some questions about his patients whom she had seen, but never concerning the Dundas Valley practice. Furthermore, he said that he had not had a conversation with the respondent with respect to the administration of narcotic drugs to patients. We do not find anything in the oral evidence given by Dr Patel which would support the statement in his letter concerning open and comfortable communication with the respondent particularly regarding issues in general practice and patient management. The thrust of his oral evidence was that such communications did not occur.
The letter from Dr Patel went on to state that the respondent always presented herself in a professional and ethical manner, and she was well respected by patients and staff at the surgery. The letter then continued; "In particular, on my absence for holidays, Dr Chen looked after my patients, by taking detailed history and is performing relevant examinations, to ensure appropriate prescribing and follow-up, not just a relieving printout of script. For that, Dr Chen received great approval from my patients. In a case of my patient requesting narcotic analgesic, Dr Chen provided appropriate explanation and alternative therapy, making my patient at ease."
In oral evidence Dr Patel said that when he returned from leave he never looked at the clinical notes taken by the respondent to see what she may have done. In fact, he did not check her notes at all because they were on computer records. He said he did not have access to the records of the respondent concerning those of his patients whom she had seen. The only basis for the opinion expressed by Dr Patel about the respondent's care of his patients consisted of feedback which he had received from his patients. Such feedback extended also to whether or not she had performed relevant examinations.
In these circumstances we are at a loss to understand the possible basis for the opinion expressed by Dr Patel in his letter that the respondent had taken detailed histories, had performed relevant examinations and had ensured appropriate prescribing and follow-up. In making this assertion in this letter Dr Patel was relying only on patient feedback. Unless Dr Patel had engaged in a searching examination of a sufficient range of his patients concerning the nature and extent of their consultations with the respondent whilst he was on leave, the representations made by him are misleading and unprofessional. There is no such suggestion by Dr Patel that he had made such enquiries of his patients.
We are not prepared to rely on the evidence of Dr Patel for any purpose in the determination of these proceedings.
[21]
Dr Murray Wright
Dr Murray Wright is a consultant psychiatrist who was asked to provide expert opinion evidence on behalf of the respondent. After perusing a volume of material and interviewing the respondent for 75 minutes on 11 July 2016 Dr Wright provided a report dated 18 July 2016 which became evidence in the proceedings. In addition he gave oral evidence.
Dr Wright took a history from the respondent which he summarised in his report. She informed him that she was lacking in experience and confidence in treating mental health, drug and alcohol and chronic pain conditions requiring narcotics at the time that she commenced working at the Dundas Valley Centre. She told him that no one at that centre was aware of the requirement to apply for an authority to prescribe drugs of addiction. When asked by him what advice she had sought, the respondent told him "that she spoke to the senior doctors in the practice and considered that, because they were the principles and very experienced, their advice would be appropriate." We do not detect that any such evidence was given by the respondent herself in these proceedings. Certainly, she said in her written statement that she was too dependent on the principals for professional guidance and too subservient in relation to the prescribing of drugs. However her oral evidence was to the effect that the principal influence of these doctors consisted of their prescribing habits which, in some cases, she followed without questioning their appropriateness.
After referring to the history given by the respondent, the documentation provided and his examination of her, Dr Wright said that there were several factors which combined and contributed to produce the respondent's inappropriate conduct. He said the most important factor was "an environmental one". This was a reference to the nature of the practice involving a significant number of patients being prescribed narcotics, with existing and "very experienced" general practitioners either unaware or unconcerned about the need to obtain an authority. In addition to this "environmental factor" Dr Wright said that the respondent "had little experience during her own training of treating these patients and thus little experience of the appropriate regulations." Dr Wright then described what he said was the third contributing factor namely the respondent's "mistaken belief that she would receive appropriate advice on how to treat these patients from the senior and experience colleagues" and thereby failed to obtain advice or information from "other colleagues, legal advisers or the PSU." A fourth factor identified by Dr Wright was the respondent's "rather deferential nature, evidenced by her willingness to trust the advice from senior colleagues purely because they are senior."
Dr Wright went on to note that the respondent had never been the subject of any complaints in any other part of her training or recent clinical experience. Accordingly, he surmised that the factors which he had described "were highly relevant in the genesis of her inappropriate conduct." He corroborated this conclusion because there was no evidence that the respondent "suffers from any significant mental health problems or personality problems which can at times contribute to conduct of this nature."
Dr Wright was adamant that he was able to make an assessment of the respondent's personality based on what she had told him. He conceded that he had not carried out any psychometric testing. Furthermore, he had a very short consultation with her, there appears to have been no real testing of the statements she proffered in the session to ascertain accuracy, honesty and, so, depth of remorse, and, by his evidence, he undertook no objective formal assessments of personality traits to support his assumptions and inferences
Accordingly we feel comfortable in disagreeing with the reasoning process adopted by Dr Wright. We observe that we have had available to us a greater volume of documentation than was made available to him and we have had a much greater period than 75 minutes in which to hear from the respondent whilst she was engaged in giving oral evidence in the proceedings. In making this comment we are conscious that the respondent would have been under some pressure whilst giving evidence occasioned by the fact that she was participating in tribunal proceedings of an adversarial nature. However, there is no evidence that when she was engaged to work at the Dundas Valley centre the respondent had any expectation that she would be given the kind of guidance and instruction referred to by Dr Wright, and when the respondent followed the same treatment regime of other doctors she did so willingly. Indeed, the respondent did make changes to the treatment of some patients of her own volition. Furthermore, if the respondent had any doubt about her knowledge and expertise in dealing with a problem which she had not confronted previously in a medical practice it was her responsibility to ensure that she placed herself in a position to adequately treat her patients. There was nothing stopping her from making any of the enquiries which Dr Wright thought she had been precluded from making by reason of her reliance on the other practitioners or her deferential nature. In oral evidence Dr Wright said that having a deferential nature can sometimes lead a medical practitioner into trouble, and that it is not an ideal trait. He said that a medical practitioner must exercise independent clinical judgement. He said that proof of the influence of others was the fact that she had not encountered any similar problems at any other practice. However, no persuasive evidence has been given in the proceedings to the effect that the respondent's conduct was caused by her deferential nature. Certainly, her own evidence is not to this effect, and such objective evidence that is available consisting of the clinical records of the patients was not supportive of her submission that deferential behaviour was an explanation for her conduct. The fact that in some cases the respondent followed or replicated treatment afforded by others in the practice is more explicable on the basis that she did not attempt to exercise any independent clinical judgement in dealing with her patients. If behaviour of this kind is a feature of the respondent's character then, to adopt the opinion of Dr Wright in this regard, it is one that may lead her into trouble.
Once we have concluded that there is no or little basis for the opinion expressed by Dr Wright, and once it is accepted that the respondent does not suffer from any relevant significant mental health or personality problems, it follows that such expertise that Dr Wright would bring to bear as a consulting psychiatrist is of lesser significance in assessing the respondent's conduct and the reasons therefor.
For completeness we note that Dr Wright was confident that the respondent had identified and understood the reasons why she engaged in her inappropriate conduct, and that she had sufficient insight to give confidence that she would not engage in such conduct again. He concluded that she could safely continue to practice medicine subject to practice conditions being imposed including a restriction on the right to prescribe drugs of addiction, supervision and mentoring. Importantly, also, Dr Wright was of the opinion that it would be necessary to ensure that the respondent worked in an appropriate environment where her personality traits would not allow her to succumb to undue influence by others.
In oral evidence, Dr Wright said that he recognised that there were significant gaps in the respondent's knowledge base concerning her legal obligations and her prescribing practices in the area of narcotics. He acknowledged that narcotics played a part in providing palliative care.
[22]
The respondent's referees
The respondent tendered a number of supporting references including that of Dr Patel with which we have dealt separately. The other references are from;
Dr Stephen Zhang dated 26 June 2016. He first met the respondent in 2010 when she applied for a general practitioner position at his surgery. She decided to work elsewhere. He has had contact with the respondent over the last two years at educational seminars and social meetings within the Sydney Chinese Doctors Group in which both he and the respondent are active participants. He said that he believed the respondent to be "an honest and disciplined person, and a professional and caring doctor…. I have not known her relationship with patients and her colleagues to be other than ideal." There is no basis contained within the reference for his beliefs, and there is no reference at all to the complaints the subject of these proceedings which the respondent has admitted. We place little if any value on this reference.
Dr Zhen Zhang dated 29 June 2016. He is a consultant psychiatrist and has known the respondent for approximately three years as a referring general practitioner, and as fellow members of a doctor's forum. He thought that the respondent was a "caring, pleasant and easy-going person by nature" who is well respected by her patients. He thought she always displayed "professional integrity and ethics" and that she appeared to be diligent in carrying out her work. She also seemed keen to improve her medical knowledge. He referred to the fact that the respondent was subject to "a HCCC complaint in the context of alleged unsatisfactory professional conduct and professional misconduct, in relation to inappropriately prescribing drugs of addiction to patients." The use of the word "alleged" is indicative that Dr Zhang is not aware of the admissions made by the respondent. His reference carries little weight accordingly.
Dr Isobel Lang dated 29 June 2016. She supervised the respondent during her general practice registrar training from January to July 2007 in Cessnock. She found the respondent "hard-working, conscientious and well informed" showing a keen interest in learning and the welfare of her patients. Dr Lang said that she had confidence in the respondent's integrity and responsibility. Dr Lang said that she had read the complaint filed in these proceedings but did not indicate whether she was aware of the extensive admissions made by the respondent. In this regard this reference carries little weight.
Dr Yanjie Liu dated 12 July 2016. He is a consultant cardiologist to whom the respondent refers. They have been sharing the care for patients over the last five years. He thought that the respondent was "an excellent general practitioner with broad knowledge and skills in her professional area" and that she was "diligent, meticulous and caring." Although Dr Liu has read the complaint he does not state whether he was aware of the extensive admissions made by the respondent. This reference must also carry little weight.
Dr David King dated 12 July 2016. He is a general practitioner of long-standing and has been a Supervisor with the General Practice Training Program for many years. Dr King supervised the respondent when she was a registrar at his practice from July 2007 to July 2008. He said that the respondent "demonstrated clinical acumen consistent with her level of training and experience." She worked willingly and harmoniously in a team environment. Dr King said that he had read the complaint and the schedules and that he could not recall that any similar issues arose whilst the respondent was working at his practice. Dr King does not say whether he is aware that the respondent has made extensive admissions and his opinion is thus of limited assistance.
Dr Danian Yang. He has known the respondent since he commenced working at the Campsie centre in 2014. He and the respondent both practice part-time and often share care for patients. He said that the respondent "has demonstrated good clinical skills with patients including history taking, examination, patient management and performing investigation." Unfortunately, Dr Yang gives no basis for these observations and it is thus difficult to give much weight to them. As with the other references, Dr Yang has read the complaints brought against the respondent, but does not state any awareness of the extensive admissions made by her. This also detracts from our ability to accord this reference much weight.
[23]
Professional misconduct
The respondent conceded that she was guilty of professional misconduct as well as unsatisfactory professional conduct as both those expressions are defined in the National Law. Relevantly, the definitions are in the following terms;
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law,
"professional misconduct" of a registered health practitioner means-
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-
(a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
………………………………………………………
(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
We observe that in determining whether the respondent is guilty of professional misconduct we must be satisfied to the requisite standard, namely what has become known as the Briginshaw standard that the relevant complaints and particulars have been established. We proceed on the basis that we must be comfortably satisfied, on the balance of probabilities, that the complaints and the particulars have been made out. The respondent has formally conceded that they have been made out, and we are so satisfied to the requisite standard, on the basis of the evidence in the proceedings, that in the aggregate they constitute professional misconduct. The mere recitation of the complaints and the particulars, coupled with the evidentiary material to which we have referred and the expert opinion of Dr Bittar in the context of the concessions made by the respondent are sufficient to justify this conclusion. We shall consider the professional misconduct of the respondent in greater detail in determining what protective orders should be made consequent upon the finding of professional misconduct.
[24]
Protective orders
The complainant submitted that an appropriate protective order in all the circumstances was that the respondent be suspended from practice for a period of three months and that thereafter a number of practice conditions be imposed on her registration. These included a random audit, category B supervision, and prohibition on the possession, supply, administration or prescription of drugs of addiction and other drugs. The respondent submitted that she be subjected only to a reprimand and the imposition of practice conditions.
Although, by definition, a finding of professional misconduct would justify an order for suspension or cancellation of registration it does not necessarily follow that the Tribunal is bound to make such an order, and the consideration of the nature and extent of any consequential orders must be determined by reference to well-established principles.
It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said;
35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows:
"The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.
But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."
37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258):
"It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
The thrust of the respondent's case has always emphasised that when she joined the Dundas Valley practice she had had no or little exposure to dealing with patients suffering from chronic pain, some of whom were drug seeking, and who were or might have been drug dependent. Furthermore, she had deferred to the more experienced senior practitioners in following and, presumably adopting the treatment regimes which they applied to the patients of the practice. To some limited extent there is a degree of corroboration contained within the letter of Dr Chong addressed to the HCCC, to which we have earlier referred. It was this approach which the respondent propounded to Dr Wright, and upon which he based his opinion concerning her circumstances.
However, the totality of the evidence which is before us does not support the basic thrust of the respondent's case. In her oral evidence the respondent confined the degree of influence exercised upon her by others in the practice by stating that she merely followed their prescription regimes. This is as much a reflection of matters such as ignorance, laziness or a non-caring attitude as it is to the fact that she succumbed to any undue influence by others in the practice, as was asserted on her behalf. We have directed attention to the fact that in some cases the respondent was able to operate independently and clearly initiated her own regime of treatment. In other cases the respondent failed to look at and to have regard to comments contained in the clinical notes of the patients, especially made by Dr Chong, containing a warning that the patient was or might be drug dependent and drug seeking. This reflects laziness and non-caring, and these failings are reflected also in the respondent's attitude to the recording of clinical notes. She had said that she regarded herself as performing a fill-in role at the practice and was not concerned about the quality of the clinical notes which she recorded. Even if it was accepted that the respondent acquiesced or conformed to a certain deficient standard of record keeping, she would have to show that she was not aware of alternative standards and cultures of practice or that she was unable to remove herself from this situation - she clearly was aware of alternatives (she was in fact practicing elsewhere) and there was no evidence presented suggesting that she was unable to relocate her other practice environment.
It follows that we are not satisfied that the respondent has made out any case that her admitted misconduct should in some way be ameliorated by any influence exerted by any other practitioner. Even if it were accepted that the Respondent had a deferential nature as was asserted by Dr Wright, such a nature is incompatible with the good practice of medicine, as Dr Wright confirmed. In any event, if the respondent deferred to anyone it was clearly the drug seeking patients.
We acknowledge, as is well known, that drug-dependent patients are often difficult to treat, and difficult to deal with. This requires special skills and some expertise. The respondent said that she did not possess these skills or this expertise, but nevertheless persisted in continuing to treat these patients. This is also indicative of an attitude incompatible with the safe practice of medicine.
It is a not uncommon feature of medical practice to encounter new situations and new circumstances with which the practitioner is not necessarily readily and instantly familiar. These situations and circumstances may require the medical practitioner to acquire new knowledge, and importantly to refer a patient to someone else with greater knowledge and expertise. In the context of a general practice this may involve referral to another member of the practice, or to a specialist. We cannot believe that the respondent was unaware at the time that she lacked the requisite skills and expertise to deal with these patients and to administer drugs of addiction. (We have difficulty in understanding how it came to pass that the respondent who had had some years of experience in practice before joining the Dundas Valley practice, and had been a registered nurse could not have known of the requirement to seek an authority under the Poisons and Therapeutic Goods Act and Regulations, but we shall proceed on the basis that she genuinely was unaware of this statutory requirement). If she was so unaware, then this would display a naïveté and lack of insight that would seriously bring into question her ability to practice safe medicine. If the respondent was so aware, then clearly she failed to bring to bear any independent exercise of professional judgement that would be expected of a medical practitioner in dealing with a medical situation with which she was unfamiliar. Her propensity to prescribe opioids in conjunction with benzodiazepine created another dimension of the same problem. Again, the respondent had not made any attempt, on the evidence, to conduct any research about the prescription of these medications concurrently or to have made any inquiries of any kind about this matter. This would also seriously bring into question her ability to practice safe medicine.
The admitted failure of the respondent to create proper and appropriate clinical records is a serious matter. There are specific provisions contained in Schedule 2 of the Health Practitioner Regulation National Regulations which deal with the keeping of records. The respondent suggested in her evidence that she was under time pressure because the practice closed at 6 PM each day and she was forced to leave the surgery then. Whilst some sympathy must be accorded to the respondent in these circumstances, there is no evidence that she made any complaint or took any steps to enhance her ability to make the necessary records. In any event, she determined the time spent with each patient and the time taken after each patient for note recording. Furthermore, the respondent exhibited disdain for any obligation to keep proper records at the practice because she regarded her role as a "fill-in role" only and did not feel under any obligation to make appropriate records. This is, in our opinion, tantamount to a deliberate disregard for her statutory obligations and created a risk to the health and safety of her patients because of the inability of another practitioner to fully understand what treatment had been afforded to a patient and, importantly, why. Conduct of this kind must seriously create concern for the ability of the respondent generally to practice safe medicine.
It is well-established by authority at appellate level and within this Tribunal that any failure to properly prescribe to and manage a patient who is administered drugs of addiction is a serious matter. These drugs which require in many circumstances the issue of an Authority must be prescribed with great care and the patient must be carefully monitored and managed for all the reasons referred to in the report of Dr Bittar which we have summarised above. Medical practitioners are in a unique position in enabling members of the public to have access to drugs of addiction and the community is entitled to rely on the integrity and professional expertise of medical practitioners to avoid creating drug addicts and to avoid feeding the habits of drug addicts. This is not necessarily an easy task, but there are well-recognised protocols for the administration of drugs of addiction and well-recognised resources to assist medical practitioners in treating their patients. The respondent clearly failed in all of these areas and did not display any initiative or insight in meeting the challenge which she says she perceived she had when dealing with this cohort of patients. This is a most serious matter and calls into question the ability of the respondent generally to practice medicine safely.
We refer to the decision of HCCC v Dr Nemeth [2012] NSWMT 4 as reflecting the appropriate approach to be taken to the determination of these proceedings in accordance with principles well established by relevant authorities. At [51] and following the Tribunal said;
In Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99 at [18] and [19], the Tribunal said:
[18] The issue is whether, when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration: s 37 Medical Practice Act 1992, s 139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct based on the outcome. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public: s 2A (3) of the Act.
[19] The "seriousness" of unsatisfactory professional conduct depends on the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. "Misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Priestley JA at [104]. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at [200].
As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said:
In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.
In our opinion, the professional misconduct to which the respondent has admitted is of a very serious nature, and we have grave doubts concerning the ability in general of the respondent to safely practice medicine, for the reasons which we have outlined. Furthermore, the respondent demonstrated indifference and recklessness of the kind deplored by Kirby P (as his Honour then was) in Spicer, extracted above.
The respondent submitted that in determining what protective orders to make and, in particular, in considering whether cancellation of registration, as opposed to suspension, is appropriate we need to find that the respondent is probably permanently unfit to practise. There have been some older decisions of this Tribunal which appear to have determined that unless it can be demonstrated that a medical practitioner is permanently unfit to practice medicine then he or she should not have their registration cancelled. We respectfully disagree. In our opinion, if it can be demonstrated that at the time of the making of the decision that the medical practitioner is unfit to practice medicine safely, and will likely remain so for a significant indefinite period, then this mandates in the interests of the protection of the public, which is at the forefront of the National Law, that registration should be cancelled. This course of action does not preclude an application for reregistration at an appropriate time. On this basis, the question as to whether unfitness to practice medicine safely is or is not permanent is of less relevance. It would, as a matter of logic, be inappropriate and an abdication of the responsibilities of this Tribunal to refuse to cancel the registration of a practitioner who was determined to be unable to practice medicine safely unless it was thought that he or she was permanently unfit to do so. We refer to the discussion of these matters in a number of recent decisions of this Tribunal, such as Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 at [101]-[102], with which we agree.
In the circumstances of the respondent it is our opinion that she is currently not able to practice medicine safely. Indeed, the evidence from Dr Wright that was not challenged by the respondent was that she had a character flaw of susceptibility to environmental factors - time constraints, lack of available information, dominant patients - that raises serious issues about her practice competence and that was not addressed in any education or counselling undertaken in the period between the complaint being lodged and the hearings. In addition, she has exhibited failings and inadequacies as we have explained them which, in the aggregate demonstrate unfitness to practice medicine. She has consistently and inappropriately prescribed drugs of addiction to a large number of patients with histories of drug dependence or who were seeking drugs of dependence, has failed to carry out any proper medical assessment in most cases, has prescribed at a dosage which is inappropriate, has inappropriately combined opioids with benzodiazepines, has failed in some instances to make referrals to a specialist, has failed to obtain an Authority as required by statute and has failed to create and keep proper medical records. All of this has been compounded by an uncaring attitude concerning her record keeping obligations and her inability to practice safe medicine either through ignorance, indifference or laziness.
Whilst of lesser significance, but significant nevertheless, are the additional matters recognised by the authorities, as summarised in Do, previously extracted. It is important to send a message to other practitioners that the serious and extensive misconduct in which the respondent engaged will not be tolerated by this Tribunal. Such an approach enhances public confidence in a profession in which the substantial majority provide a necessary and exemplary service to the community.
We acknowledge that the respondent has asserted that she has learned from her past mistakes and no longer practices medicine in the manner which has given rise to these proceedings. She asserts that she no longer deals with patients with drug addiction problems. However, apart from these bald assertions we have no specific evidentiary material upon which to accept what the respondent now says. We do not know, and we have not been told, whether the respondent currently treats patients who are suffering from chronic long-standing pain, and whose condition might give rise to the same problems as the respondent encountered at the Dundas Valley practice. We have not been taken to the respondent's clinical records at Campsie to demonstrate that they are fully compliant with the relevant Regulation. The evidence of Dr Patel cannot be relied upon for the reasons which we have earlier stated. The letter from Dr Yang does not sufficiently touch upon these matters to enable us to gain any corroborative support for the bald generalisations made by the respondent. And, Drs Cai and Fang have not furnished any supportive or corroborative material of the respondent's assertions.
We observe that a claim that guilt has been accepted and there is remorse is subverted where the respondent goes on to provide a series of excuses. In this case, the mitigating factors as presented - influence of others, lack of sufficient experience - were not supported by the evidence. Ironically, the evidence submitted for mitigation merely strengthened the case for professional misconduct - that is, not diagnosing in the interests of the patient, doing what appeared minimally acceptable in the practice, and not seeking out information and training to address gaps in knowledge. Indeed, on the evidence she had only undertaken and completed the requirements of the course "Issues in Prescribing in General Course" conducted by Monash University in about 16 October 2016.
If the respondent seeks to persuade us that she has gained the necessary insight, is a changed practitioner, and now practices medicine in a safe manner without any of the failings which have been identified, the burden of demonstrating this falls on her, albeit to the usual civil standard. That burden has not been discharged in the circumstances of these proceedings.
We are also mindful that, as Walsh JA said in the New South Wales Court of Appeal in Ex parte Tziniolas : Medical Practitioners Act (1996) 67 SR (NSW) 448 at 661: 84 WN (NSW) (Pt2) 275 at 286:
Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and attitude it must require clear proof to show that some years later he has established himself as a different man.
We are unable to conclude that the respondent is currently able to practise medicine safely, nor that she is likely to be able to do so in the near future, on the basis of the evidence available to us.
The complainant submitted that an appropriate protective order in all the circumstances was that the respondent be suspended from practice for a period of three months and that thereafter a number of practice conditions be imposed on her registration. These included a random audit, category B supervision, and prohibition on the possession, supply, administration or prescription of drugs of addiction and other drugs. The respondent submitted that she be subjected only to a reprimand and the imposition of practice conditions. Both of these submissions are, in our opinion, inappropriate and do not reflect the seriousness and extent of the professional misconduct in which the respondent engaged and the milieu in which this Tribunal is required to operate.
[25]
Conclusion
In all the circumstances we conclude that the professional misconduct which we have found, and which we have described, is sufficiently serious to warrant the cancellation of the respondent's registration. Because of the gravity of the misconduct, and our concerns for the ability of the respondent to generally practice safe medicine in the absence of any evidence or information to the contrary, we are of the opinion that we should make an order of cancellation of registration, and we shall do so.
By Section 149C(7) of the National Law we are empowered to provide that an application for review of the order under Division 8 may not be made until after a specified time. In all the circumstances we are of the opinion that a period of 18 months is appropriate, as allowing for the respondent to engage in such remedial processes as she may determine before applying for reregistration, if she desires to do so.
[26]
Costs
The complainant sought an order for costs. This is a costs jurisdiction and costs normally follow the event. The respondent acknowledged that there was no argument available to her which would displace the making of a costs order, and we shall do so.
[27]
Orders
We make the following orders consequent upon the findings of professional misconduct which we have made:
1. the registration of the respondent as a medical practitioner is cancelled with effect 14 days from this date
2. pursuant to section 149C(7) of the National Law, an application for review of these orders is not to be made for a period of 18 months from this date
3. the respondent is to pay the costs of the complainant assessed in default of agreement
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 November 2016