Health Care Complaints Commission v Chin

Background

1. Before turning to the Complaints and the particulars that support each, it is useful to provide some background to the Respondent's practice to give context to the complaints.
2. The practitioner was first registered as a medical practitioner in NSW on 12 December 1985. He has practised as a general practitioner since then, most recently in a practice he purchased in 2000 in Balgownie. In 2019 the respondent was suspended from practice and has remained suspended.
3. On 24 October 2019 the Respondent was arrested and charged with a number of sexual offences committed against a patient, Patient C. The Respondent was refused bail and remanded in custody. The arresting officer made a complaint to the Commission about the Respondent's conduct.
4. On 4 November 2019 a s150 hearing was convened. The Respondent did not attend the hearing which was conducted in his absence. Although the Respondent's legal advisor was invited to make written submissions, none was received. The issue before the s150 Panel alleged that between 2014 and 2015 the Respondent made sexualised jokes with Patient C during the consultations and inappropriately touched the patient's inner thigh and buttocks without clinical indication. It was also alleged that on 10 January 2017 and 11 April 2017 the Respondent exchanged prescriptions for large quantities of drugs of addiction for sexual favours from the patient.
5. The Panel concluded that the Respondent's prescribing of large quantities of drugs of addiction represented a risk to the health and safety of patients and it was concluded that the charges raise serious concerns about the Respondent's practice of medicine. As a result the Respondent's registration was suspended on 4 November 2019.
6. The Respondent was tried in relation to the charges laid against him in relation to Patient C. Patients A and B also complained of sexual assaults in relation to which the Respondent was criminally charged. At all trials, the Respondent conceded the conduct alleged but asserted that the sexual contact was consensual. He was acquitted in all three trials.
7. The statements made by each patient to the police in support of the complaints and their evidence before the jury was before the Tribunal. The Respondent's evidence in relation to the criminal charges was before the Tribunal.
8. Counsel for the Respondent relied on the Respondent's evidence before the District Court as representing his version of events. In his reply to the complaints the Respondent said that he relied on his acquittals of the criminal charges and denied he touched any of the patients to whom the complaints refer without their consent.
9. In relation to the police statements of the patients on which the Commission relied in part in proof of the particulars of the complaints, counsel for the Respondent referred a number of times to the jury's advantage in hearing the evidence of the complainants about the Respondent's sexual conduct towards them. It was submitted that the complainants' police statements should not be considered by the Tribunal but rather the Tribunal should only have regard to the complainants' evidence adduced in the trial and in particular in cross examination of them. No legal or even practical basis was advanced for the contention that the police statements ought not be considered and we reject that suggestion. However, clearly in considering the evidence of the complainants where the Complaint and Particulars are not admitted we will take into account the totality of their evidence in determining whether the particulars are established.
10. It is worth reiterating that the issues before the Tribunal are of a different nature and substance to those agitated in the criminal proceedings, the standard of proof is different and, unlike the criminal trials, the Tribunal's enquiry is not limited to the Respondent's sexual conduct with his patients and whether they consented to it. The Tribunal's function is protective and a wider investigation is necessary that the circumscribed nature of a criminal trial.
11. In determining disputed questions of fact Tribunals have adopted the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 and s140 of the Evidence Act (1995) NSW as informing the fact finding process in that while the standard of proof is to the civil standard, the Tribunal should be "comfortably satisfied" of the determination of facts cognisant of the well-known passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at 171 that: [T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found.
12. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Leeming JA with whom Gleeson JA agreed that, while strictly speaking neither Briginshaw nor s140 of the Evidence Act applies directly in decision making in NCAT where the rules of evidence do not apply, they continued and said at [127] They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.
13. Thus, while there is no requirement that the Tribunal approach fact finding by taking into account the principle in Briginshaw and by reference to s140 of the Evidence Act, it is nonetheless an important touchstone to the process of fact finding.

COMPLAINT ONE

1. The Commission contends that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a),and/or (l) of the National Law in that the practitioner has: i. 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

Patient A 1. On a number of occasions between August 2016 and December 2016, the practitioner touched Patient A's buttocks during consultations with Patient A in circumstances where: a. the practitioner did not seek Patient A's consent to do so; b. the practitioner knew Patient A was not receptive to the touching; c. there was no clinical indication to touch Patient A's buttocks; d. immediately after the touching of Patient A's buttocks, the practitioner would commonly say the words "soft bum". 2. On a date unknown between August 2016 and March 2017, during a consultation with Patient A, the practitioner inappropriately said the words or words to the effect of "How do you know if someone is really great at sex? Just by looking at the ears". 3. On a date unknown between August 2016 and March 2017, during the same consultation as described in particular 2 of Complaint 1, the practitioner, while holding Patient A's ears, thrust his hips towards Patient A's head and said the words "yeah baby". 4. In performing the conduct particularised in particular 3 of Complaint 1, the practitioner inappropriately mimicked an act of fellatio. 5. On a date unknown in 2016, during a consultation with Patient A, the practitioner: a. wore an apron with: i. a naked man printed on the front of the apron; ii. a rubber penis protruding from the apron; b. said the words, or words to the effect of: "this is nothing like mine, mine is bigger, this in the entrée, wait until you get the meal". 6. On or about 16 March 2017, while extracting blood from Patient A, the practitioner inappropriately used his thighs to restrain Patient A's left wrist by placing Patient A's arm between his own thighs. 7. On at least one occasion between August 2016 and March 2019, after a consultation with Patient A, the practitioner inappropriately: a. followed Patient A and Person D as they exited the consultation room; b. positioned himself very close to Patient A and Person D which did not allow adequate room for Patient A and Person D to step back when they opened the consultation room door, and as a result, Patient A's bottom came into contact with the front of the practitioner's body; c. said the words or words to the effect of: i. "ooh"; and ii. "you could be the meat in the sandwich" or "could be the sandwich in the middle". 8. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions set out in particulars 1 to 7 of Complaint 1.

Consideration

1. The Respondent admitted none of the particulars in relation to this Complaint.
2. All of the particulars are supported by the statements of Patient A given to the police and to the HCCC. From very early on as a patient of the Respondent, Patient A would attend appointments with his partner because, he said, he felt uncomfortable being alone with the Respondent. Patient A's partner (referred to as Person D) made a statement in which she supported the incidents which took place while she was with Patient A in the Respondent's consulting room.
3. It is also important to note there was no challenge to the statements of Patient A or Person D in the Tribunal hearing. It was not submitted for the Respondent that Patient A or indeed Person D changed or withdrew their evidence in relation to the Respondent at the criminal trial and there is nothing in the transcript of their evidence in the District Court which suggests they did not adhere to their statements.
4. It is to be observed that in the Respondent's evidence in the criminal trial he accepted much of Patient A's account albeit that he put a different complexion on his comments and actions, referring to his conduct as joking or in fun.
5. The Tribunal accepts the evidence of Patient A and Person D in relation to these particulars and finds them established.

Patient B

1. Particulars 9 to 18 concern Patient B. 9. On or about 14 September 2011, during a consultation with Patient B, the practitioner: a. took a photograph of Patient B's erect penis in circumstances where there was no clinical indication to do so; and b. touched Patient B's penis in circumstances where there was no clinical indication to do so. 10. On or about 16 September 2011, during a consultation with Patient B, the practitioner took a photograph of Patient B's penis in circumstances where there was no clinical indication to do so. 11. On one or more occasion between 2010 and 2019, the practitioner inappropriately sent Patient B photographs of his own penis via text message. 12. On a date unknown between 2010 and 2019, the practitioner sent Patient B a text message with the words "Your arse is mine". 13. On at least ten occasions between 2010 and 2019, the practitioner performed an act of fellatio on Patient B during medical consultations. 14. On one or more occasion between 2010 and 2019, the practitioner received an act of fellatio from Patient B during medical consultations. 15. On one or more occasion between 2010 and 2019, the practitioner kissed Patient B on the lips during medical consultations. 16. On one or more occasion, on dates unknown between 2010 and 2019, during consultations with Patient B, the practitioner: a. said to Patient B words to the effect of "You are too good looking to not be gay"; b. called Patient B "cute"; c. said words to the effect of "You only come and see me for the drugs. Not because you like me"; d. told Patient B he wanted his "virgin arse"; e. told Patient B about another patient whom the practitioner said he had "fucked up the arse"; f. attempted to show Patient B photographs of naked men on his mobile phone; g. showed Patient B photos of Patient B with his pants down and penis showing on his mobile phone. 17 On or about 3 May 2013, during a consultation with Patient B, the practitioner: a. grabbed Patient B from behind when Patient B was walking towards the door to leave the consultation room; b. pulled Patient B's pants down; c. performed fellatio on Patient B for approximately three to four minutes; d. swallowed Patient B's semen after Patient B ejaculated; e. said the words or words to the effect of "That was nice. It tasted good" after he swallowed Patient B's semen; f. kissed Patient B on the lips after he swallowed his semen. 18. On a date unknown between 2014 and 2015, during a prostate examination, the practitioner: a. moved his fingers around the inside of Patient B's anal cavity; b. when moving his fingers around the inside of Patient B's anal cavity, said the words or words to the effect of: i. "that's your g-spot"; or ii. "that's your g-spot there that I'm rubbing now". 19. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient B by reason of his actions set out in particulars 9 to 18 of Complaint 1.
2. In relation to the particulars of the complaint as relate to Patient B, the Respondent said in his reply: The Respondent admits (para 19 of the application) that he engaged in inappropriate behaviour of a sexual nature towards Patient B by reason of his actions set out in particulars 9 to 18 of Complaint One"
3. In the light of the Respondent's admissions to the particulars, little else needs to be recorded. The particulars are consistent with the patient's statement to the police and to the Commission and the Tribunal finds they are made out.

Patient C

1. Particulars 20 to 25 relate to Patient C. 20. On one or more occasion, on dates unknown in 2016, the practitioner inappropriately touched Patient C on the buttocks whilst Patient C was having his weight measured, in circumstances where there was no clinical indication to do so. 21. On or about 10 January 2017, during a consultation, the practitioner inappropriately: a. exposed his penis to Patient C; b. asked Patient C to kiss his penis; c. promised Patient C that he would prescribe him prescription drugs if he kissed his penis; d. said to Patient C he would consider prescribing ten boxes of prescription drugs if Patient C kissed the practitioner's penis; e. asked Patient C to suck his penis; f. said to Patient C that he would prescribe him ten boxes of prescription drugs if Patient C kissed and sucked the practitioner's penis; and g. received fellatio from Patient C. 22. On or about 10 January 2017, after receiving fellatio from Patient C, the practitioner said the words or words to the effect of "I can stick my cock up your arse now. That's for your next ten boxes." 23. On an unknown date in 2017, in addition to the conduct described in particular 21 of Complaint 1, the practitioner received fellatio from Patient C during a consultation. 24. On or about 22 October 2019, during a consultation, the practitioner inappropriately: a. squeezed Patient C on the nipple in circumstances where: i. there was no clinical indication to do so; and ii. Patient C did not give the practitioner permission to do so. b. said words to the effect of "You've still got titties". c. pinched Patient C's nipples in circumstances where: i. there was no clinical indication to do so; and ii. Patient C did not give the practitioner permission to do so. 25. On multiple occasions in addition to particular 24a of Complaint 1, on dates unknown, during consultations, the practitioner squeezed Patient C's nipples. 26. On a date unknown, during a consultation with Patient C, the practitioner: d. took a phone call whilst Patient C was in the room; and e. told Patient C to "get the fuck out". 27. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient C by reason of his actions set out in particulars 20 to 25 of Complaint 1.
2. The Respondent admitted the conduct particularised in relation to Complaint One as it relates to Patient C and admitted the allegation in paragraph 27 that he engaged in inappropriate conduct of a sexual nature towards Patient C by reason of his actions set out in the particulars.
3. Patient C said that at the appointment on 10 January 2017, to which particulars 21 and 22 relate, he recorded the consultation with the Respondent because he said he knew no one would believe him … …if I told them that Doctor Chin tries to touch me and he make me try to touch him to gain a repeat script of Oxynorm".
4. In submissions, counsel for the Respondent appeared to resile from the Respondent's admissions to the particulars supporting the Complaint about Patient C. It was argued that the Respondent did not exchange drugs for sex and the comments that appear in Particulars 21 and 22 represents an "unfortunate turn of phrase". It was indeed "unfortunate", but the Tribunal is not persuaded that the words recorded by Patient C at that consultation did not mean exactly what was said. Had the Respondent wished to take issue with how his "turn of phrase" might be interpreted, it was open to him to give evidence to the Tribunal. He did not.
5. The text of the recorded consultation appears in Patient C's police statement. Much of the Respondent's discussion with the Patient does not bear repeating but at one point at a time when the Respondent had undone the Patient's trousers and exposed his penis, the Respondent observed that the Patient appeared worried about something. The Patient relied "this" indicating the Respondent touching his penis. The Patient asked whether the Respondent would be "good to him", he said, meaning writing the prescription and the Respondent said yes and then exposed his penis and said to the Patient: I'll be even better to you if you kiss it. What do you think if you kiss it I'll be even better to you.
6. The Patient said the Respondent was "pushing his luck" to which the Respondent said: "Kiss it and I'll do better" to which the Patient said: "how much better". The Respondent was urging the Patient to "kiss it" and the Patient said that he would need ten packets. There was more conversation in which the Respondent urged the Patient to fellate him and the Patient bargained for the ten packets of oxycodone. After the Patient fellated the Respondent, the Respondent wrote the prescription for ten boxes of oxycodone saying "you liked that you're a good boy". The Respondent said: I can stick my cock up your arse now. That's for your next ten boxes
7. The Respondent's words in no way could be considered "an unfortunate turn of phrase". The Respondent was clearly bargaining with the Patient, to whom he had been prescribing vast amounts of narcotic analgesia, for sex in exchange for the drugs.
8. The Respondent's medical records show that on 10 January 2017 he prescribed 448 tablets of 80 mg Oxycodone to Patient C. On 3 January 2017 when Patient C attended the Respondent, he was prescribed 40 tablets of oxycodone. We accept the argument of the Commission that there is an extremely strong inference that the enormous amount of Oxycodone prescribed on this day was, indeed, the provision of drugs for sexual favours.
9. We are persuaded that in Particulars 21 and 22, the Respondent was offering to prescribe drugs of addiction for Patient C in exchange for sexual favours.
10. The Tribunal finds the particulars of Complaint 1 as it relates to Patient C made out.

Discussion

1. Before dealing with the substance of the Complaints and supporting particulars, it is necessary to consider the submission for the Respondent that in assessing his conduct in relation to Complaint One, the Tribunal would look at his conduct in a "wider context". It was argued that the evidence, particularly that given in the District Court showed that there was a "relationship" and personal and emotional dealings between the Respondent and the Patients to whom this complaint relates.
2. There was nothing in Patient A's statements or his evidence to the District Court that supported that he was in an emotional relationship with the Respondent. Rather he said that when the Respondent made sexual remarks it made him feel sick and uncomfortable.
3. Patient B's statements refer to the sexual approaches made to him by the Respondent to which he often told him to "fuck off". Patient B commenced seeing the Respondent in 2012 and said that after an ankle operation he consulted the Respondent about pain medication and said that the Respondent increased the amounts and dosages of his earlier prescribed drugs. The Patient said he became dependent on them and asked the Respondent for more and more.
4. Patient B said that after a while the Respondent complained to him that he only came to the surgery for the drugs, "not because you like me". The Patient said that the Respondent would become angry and he said: I didn't want him to be angry at me but I also really wanted and needed the drugs he prescribed for me."
5. Worrying that the Respondent would not continue to prescribe, he consented to the Respondent's request to see and photograph his penis. Thereafter, the Patient said that the Respondent would want sexual favours to keep prescribing and the Respondent commenced fellating the Patient.
6. The evidence before the jury in the criminal trial included text messages sent by the Patient to the Respondent. The Patient was cross examined on them and it was suggested to him that he was being "flirty and overtly sexual" with the Respondent with which he agreed. The messages contain endless demands for drugs from the Patient coupled with "flirty" remarks. The Patient agreed that he pretended to be interested in homosexual sex in order to manipulate the Respondent into giving him drugs.
7. Patient C, in his statement to the police spoke about his addiction to narcotic analgesia and that he tolerated the Respondent's sexual approaches because he wanted to get his prescription for drugs. He spoke of approaching other doctors in 2016 when the Respondent "really started to make advances towards me" and fondled his penis at the appointments. However, he found that other doctors would not prescribe oxycodone for him. In his statement to the Commission, Patient C said that the Respondent "got me deliberately hooked on drugs so that he could hold out prescriptions in exchange for sexual acts. I would never have done those things."
8. We do not accept that the evidence of the patients could in any way be considered to show a relationship with the Respondent. But even if they had, it could never explain or justify his egregious breach of his obligations as a medical practitioner.
9. Counsel for the Commission submitted that there was no language strong enough to condemn the Respondent's treatment of Patients B and C. We agree. The Respondent's conduct towards Patient A was wholly inappropriate but rather pales into insignificance with his manipulation and his predatory conduct in relation to Patients B and C both of whom were deeply addicted to narcotic analgesia which the Respondent prescribed.
10. Returning to the Complaint, the Commission contends that by Complaint 1 in relation to all three Patients, the Respondent is guilty of unsatisfactory professional conduct as defined by s139B(1) of the National Law in that his conduct: …demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of an equivalent level of training or experience.
11. Dr Michael Golding, a general practitioner was requested by the Commission to consider the Respondent's conduct and give an opinion about how his conduct measured against the expected standard.
12. Dr Golding referred to the Medical Board of Australia's guide: "Good medical practice: a code of conduct for doctors in Australia" March 2014 edition as the benchmark against which the Respondent's conduct should be assessed.
13. Section 3 concerns the doctor-patient relationship and notes that a good professional relationship requires high standards of professional conduct including: 3.2.6 Recognising that there is a power imbalance in the Doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially.
14. Under the heading Professional Behaviour at 8.2.2 the Guide says: Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care.
15. Dr Golding referred to the Medical Board of Australia's Guidelines Sexual boundaries in the doctor-patient relationship. He said that sexual misconduct is an abuse of the doctor-patient relationship and undermines the trust and confidence of patients in their doctors and of the medical profession. It can cause significant and long lasting harm to patients and it is never appropriate for a doctor to engage in a sexual relationship with a current patient.
16. He considered the Respondent's sexual conduct with the three patients and concluded that it fell significantly below the expected standard.
17. Unsatisfactory professional conduct is defined by s 139B(1) of the National Law as: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of an equivalent level of training or experience …. (l) Any other improper or unethical conduct relating to the practice of purported practice of the practitioner's profession
18. The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139(B)(1) that is relating to the practice of the practitioner's profession. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 the Court considered the dictionary meaning of both improper and unethical. The Court accepted "improper" as bearing the meaning "not in accordance with propriety of behaviour…" and "unethical" as "contrary to moral precept, immoral…"
19. There could be no argument that the Respondent's conduct amounted to unsatisfactory professional conduct equally so, the Respondent's conduct was improper and unethical.

COMPLAINT TWO

1. This complaint relates to the Respondent's prescription of drugs of addiction namely drugs referred to in Schedule 8 and Schedule 4D of the Poisons and Therapeutic Goods Act to the three patients to whom the complaint refers. It also concerns the Respondent's failure to refer any of these patients to other health professionals.
2. The Respondent did not admit any of the particulars of this complaint.
3. The Commission alleges that: The Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
4. Before dealing with the prescribing for the individual patients, it is useful to consider the opinion of Dr Golding about the nature, use, effect and dangers of the drugs prescribed by the Respondent to which this complaint refers.
5. The Respondent prescribed for Patient B, fentanyl patches, codeine phosphate, tapentadol, diazepam and quetiapine. He prescribed oxycodone, fentanyl patches, morphine and Panadeine Forte for Patient C and for Patient A he prescribed oxycodone and naloxone and temazepam.

Schedule 8 drugs

1. Dr Golding said that oxycodone, fentanyl, and tapentadol are controlled drugs and are found under Schedule 8 to the Poisons and Therapeutic Goods Act (PTG Act). Their prescription is subject to restrictions because of their potential to produce addiction. They are often referred to as "drugs of addiction". The prescription of a Schedule 8 drug to a drug dependent person requires authorisation from NSW Health. A drug dependent person is defined as being a person who has, as a result of repeated administration of a drug of addiction … an overpowering desire for the continued administration of the drug.
2. Dr Golding observed that the Respondent, in his notes, clearly identify these three patients as drug dependent. He said long term opioid treatment should involve consultation with the dispensing pharmacist and a chronic pain specialist.
3. Oxycodone is indicated for the treatment of acute painful conditions in doses of 5mg every three hours as required for not more than three days. It is not recommended for long term pain management. The effects of different opioids are compared by converting the drug to oral morphine equivalent daily dose (OMEDD), thus 10mg of oxycodone is equivalent to 15mg of morphine. The risk of side effects, which include dependence tolerance and life-threatening respiratory depression, increase at over 60mg per day.
4. Fentanyl patches are used for the treatment of severe cancer related pain. The known risks associated with fentanyl include dependence, withdrawal, problematic drug use such as diversion and misuse and adverse cognitive risks. The have a high illicit value.
5. The dose of fentanyl for chronic pain depends on a number of factors including the age of the patient. Comparing fentanyl to oral morphine, Dr Golding said that a 100 microgram fentanyl patch applied every three days is the morphine equivalent of 300-480mg per day
6. Tapentadol is an opioid indicated in the treatment of acute or chronic pain. The initial dose is 50mg every 4-6 hours. The usual dose is 50-100mg every 4-6 hours. The maximum daily dose is 600mg.

Schedule 4D drugs

1. Drugs that fall within Schedule 4D of the PTG Act are restricted drugs. They are restricted because their use is liable to cause dependence. Benzodiazepines, which include diazepam, temazepam and nitrazepam fall within this category.
2. Benzodiazepines are typically used for anxiety or agitation. The usual dose is 2-5mg with a maximum daily dose of 10mg.
3. Dr Golding said that there is little, if any, justification for prescribing benzodiazepines for longer than a few days. Patients on long term benzodiazepines are likely to be dependent. They should not be prescribed for patients with a history of substance misuse or multiple psychoactive drug use.
4. Signs of dependence include, drug seeking behaviour, craving and disturbed work and personal function.
5. Panadeine Forte is a Schedule 4D drug. It is regarded as a "first step" drug in treating pain and is indicated for short term treatment of acute pain. Side effects include dependence, severe constipation, nausea and mood changes. The recommended dose is 1-2 tablets every 4-6 hours if needed, up to 8 tablets a day.
6. Dr Golding said that codeine is associated with overdose and has a high rate of misuse. He said that deaths from codeine misuse doubled over ten years since 2000 which caused it to be included in Schedule 4D. It is toxic in high doses.
7. Quetiapine is a drug commonly prescribed for schizophrenia, bipolar disorder or as an adjunct treatment for treatment-resistant major depression or generalised anxiety disorder. The usual dose varies according to the illness for which it is prescribed.
8. Quetiapine is known to be misused by drug dependent people and is one of the most commonly taken drugs in overdose. Dr Golding said that 20% of deaths associated with overdose of quetiapine were not associated with a psychiatric diagnosis which indicates that the drugs were off label or misused causing death. It is also the leading cause of toxic coma in Australia.

Patient A 1. Between 6 August 2016 and 14 March 2019, the practitioner prescribed for the Schedule 8 drug Oxycodone and Naloxone as set out in Annexure A in a quantity that having regard to the period of time over which the drugs were prescribed: 2. Between 6 August 2016 to 14 March 2019, the practitioner inappropriately prescribed the schedule 8 drug Oxycodone to Patient A without an authority in contravention of section 28 of the PTGA. 3. Between 14 July 2017 and 13 June 2018, the practitioner inappropriately prescribed for Patient A the Schedule 4D drug Temazepam as set out in Annexure B in combination with Oxycodone + Naloxone as set out in Annexure A.

1. The schedules referred to in these particulars and in the particulars in relation to the other two patients were compiled by the Commission from the Respondent's prescribing records and other information. While the Respondent did not admit any of the particulars that support this complaint, nor did he challenge the accuracy of the document and we intend to rely on it.
2. Between 6 August 2016 and 14 March 2019 the Respondent prescribed Targin (oxycodone and naloxone) in quantities that amounted to 4.9 tablets each day. The respondent prescribed the drug in doses of 20mg, 30mg and sometimes in doses of 20mg and 5mg together.
3. Dr Golding calculated, having regard to the Respondent's prescriptions, that for Patient A, in 2016 he was receiving the morphine equivalent of 32mg per day; in 2017 42mg per day, in 2018 52mg per day and in 2019, 43 mg per day.
4. Dr Golding said that the Respondent's records do not show a justification for the ongoing prescription of addictive Schedule 8 drugs and in doing so his conduct fell significantly below the expected standard.
5. He also noted that the respondent did not obtain an authority from the NSW Ministry of Health to prescribe the drugs to a drug dependent person. He noted that in relation to other patients, the Respondent had obtained the authority. He said the Respondent was aware or ought to have been aware the Patient was a drug dependent person which meant an authority was required to prescribe. In this regard too, the Respondent fell significantly below the expected standard.
6. As to the concurrent prescription of benzodiazepines and narcotic analgesia, Dr Golding said that the Respondent was prescribing the benzodiazepines to a person who the Respondent knew was drug dependent and to do so fell significantly below the expected standard.

Patient B 4. Between 10 April 2014 and 12 June 2019, the practitioner inappropriately prescribed the Schedule 8 drug Fentanyl as set out in Annexure C in a quantity that, having regard to the period of time over which the drugs were prescribed: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 5. Between 10 April 2014 and 12 June 2019, the practitioner inappropriately prescribed the schedule 8 drug Fentanyl to Patient B without an authority in contravention of section 28 of the PTGA. 6. Between 10 April 2013 and 25 July 2013, the practitioner inappropriately prescribed the Schedule 8 drug, Codeine Phosphate as set out in Annexure D in a quantity that, having regard to the period of time over which the drugs were prescribed: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 7. Between 10 April 2013 and 25 July 2013, the practitioner inappropriately prescribed the Schedule 8 drug Codeine Phosphate to Patient B without an authority in contravention of section 28 of the PTGA. 8. Between 28 June 2017 and 16 October 2019, the practitioner inappropriately prescribed the Schedule 8 drug, Tapentadol to Patient B as set out in Annexure E in a quantity that, having regard to the period of time over which the drugs were prescribed: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 9. Between 28 June 2017 and 16 October 2019, the practitioner inappropriately prescribed the Schedule 8 drug, Tapentadol to Patient B as set out in Annexure E without a pain medicine specialist's endorsement. 10. Between 28 June 2017 and 16 October 2019, the practitioner inappropriately prescribed the Schedule 8 drug Tapentadol to Patient B without an authority in contravention of section 28 of the PTGA. 11. Between 31 July 2001 and 16 October 2019, the practitioner inappropriately prescribed the Schedule 4D drugs Diazepam, Nitrazepam and Oxazepam as set out in Annexures F, G and H in a quantity that, having regard to the period of time over which the drugs were prescribed: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 12. Between 26 March 2011 and 20 June 2018, the practitioner inappropriately prescribed Patient B the Schedule 4D drug Quetiapine as set out in Annexure I in circumstances where it was not clinically indicated or appropriate in the patient's circumstances. 13. Between 22 April 2014 and 12 June 2019, the practitioner inappropriately prescribed Patient B the Schedule 8 drugs Fentanyl and Tapentadol as set out in Annexures C and E in combination with the Schedule 4D drugs, Diazepam and Temazepam as set out in Annexures F and J. 14. In 2000, the practitioner failed to refer Patient B to a pain specialist in circumstances where he had diagnosed Patient B with Chronic Pain Syndrome. 15. In June 2001, the practitioner failed to refer Patient B to a pain specialist in circumstances where he commenced prescribing Patient B with Codeine. 16. In 2001, the practitioner failed to refer Patient B to a psychologist in circumstances where: a. the practitioner recorded in Patient B's medical notes on 12 June 2001 a diagnosis of a 'nervous condition' and insomnia; b..the practitioner prescribed benzodiazepines including Oxazepam,Temazepam and Diazepam; c. a 'nervous condition' is not a recognised medical diagnosis and required a review from a psychologist to determine the diagnosis. 17. In 2008, the practitioner failed to refer Patient B to a pain specialist in circumstances where the practitioner commenced prescribing Patient B Oxycontin. 18. In 2014, the practitioner failed to refer Patient B to a psychiatrist, in circumstances where the practitioner suspected that Patient B met a diagnosis of a bipolar disorder. 19. In 2014, the practitioner failed to refer Patient B to an orthopaedic specialist in circumstances where: a. Patient B underwent an ankle arthrodesis in 2011; b. the practitioner observed weakness in the ankle following the arthrodesis; c. the practitioner reported on 12 July 2014 that the left ankle had atendency to give way; d. the practitioner reported on 12 July 2014 that, in April 2014, Patient B fell as a result of his left ankle giving way, causing him to sustain a fractured rib.

1. The prescribing records complied by the Commission show that the Respondent provided the following prescriptions for Patient B: • From 10 April to July 2013 the Respondent prescribed codeine phosphate 30mg tablets in amounts which equated to 13 tablets per day • From 10 April 2014 to 12 June 2019 he prescribed 15,460 fentanyl patches equating to 8 per day. Of those prescribed, 8,940 were 100mcg/hr. • Between 28 June 2017 and 16 October 2019 through both PBS prescriptions and private prescriptions, the Respondent provided Patient B with 19,994 tapentadol tablets, equating to 19 tablets per day. • Between 31 July 2001 and 16 October 2019 the Respondent concurrently provided the patient with prescriptions for 54,550 tablets of temazepam and 55,800 tablets of diazepam • Between 26 March 2011 and 20 June 2018 the Respondent wrote prescriptions for quetiapine equalling 2,228 tablets or 4 per day
2. Dr Golding said that the doses prescribed were excessive in quantity and strength. He said fentanyl patches are applied every three days. However, he said the respondent's prescription of the 100 microgram patches prescribed at 5 per day equated with 300mg/hr of morphine, he noted that the lethal dose of morphine is a single dose of around 250mg.
3. Dr Golding said that fentanyl is highly addictive and the respondent prescribing over five years made dependency inevitable. He said that the notes show that the Respondent knew that Patient B was drug dependent. He said that there was no rationale in the notes to explain the duration and quantity of the fentanyl patches prescribed.
4. Dr Golding said in his report, that the Respondent; …was aware that Patient B was a drug dependent person. He had prescribed large quantities of Schedule 8 medications to Patient B starting in 2001
5. Dr Golding added that most of the prescriptions were "private" which at the time were not subject to the same level of scrutiny as prescriptions written using the Pharmaceutical Benefits Scheme ("PBS").
6. In his opinion the Respondent's conduct fell significantly below the expected standard.
7. Turning then to the prescription of codeine phosphate tablets, Dr Golding said that the number of tablets prescribed equated to 51mg of oral morphine per day over three months. The Respondent had been contacted by a pharmacist in 2009 concerned about Patient B's dependence on diazepam and an undated Patient Management Plan created 2013 and in the patient's notes, indicated a goal to manage the patient's pain and included a comment about "huge doses of codeine causing liver damage".
8. The Respondent's conduct in this prescribing was considered by Dr Golding to fall significantly below the expected standard. Equally, for not obtaining an authority to prescribe codeine phosphate, Dr Golding said the Respondent's conduct fell significantly below the expected standard.
9. In relation to the prescription of tapentadol, Dr Golding considered the prescription of that drug together with the prescription of fentanyl and codeine phosphate and said that they were only indicated for acute treatment of severe pain. The daily oral dose equivalent of morphine in relation to the tapentadol alone was 180mg and all the opioids prescribed to Patient B over the period 2013 to 2019 equated to 3,345mg of morphine.

Patient C 20. Between 15 September 2009 and 22 October 2019, the practitioner inappropriately prescribed the Schedule 8 drug Oxycodone as set out in Annexure K in a quantity that having regard to the period of time over which the drugs were prescribed: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 21. Between 15 September 2009 and 22 October 2019, the practitioner inappropriately prescribed the Schedule 8 drug Oxycodone to Patient C without an authority in contravention of section 28 of the PTGA. 22. Between 15 September 2009 and 22 October 2019, the practitioner inappropriately prescribed the Schedule 8 drug Oxycodone to Patient C in circumstances where the practitioner concomitantly prescribed: a. Fentanyl patches between 5 May 2015 and 18 May 2015 as set out in Annexure L; b. Morphine between 1 July 2013 and 6 June 2014 as set out in Annexure M; c. Panadeine Forte between 15 September 2009 and 8 October 2019 as set out in Annexure N.

1. Between 15 September 2009 and 22 October 2019 the Respondent prescribed 2,749 tablets of oxycodone to patient C, equating to 14.9 tablets per day. At the same time and between 5 May 2015 and 18 May 2015 he prescribed 20 75mg/hr fentanyl patches and on three occasions, 1 July 2013, 9 October 2013 and 6 June 2014 prescribed 56 morphine tablets. Between 28 May 2012 and 9 October 2019 he prescribed Panadeine Forte at quantities that equated with ½ tablet per day.
2. As to the prescription of oxycodone, Dr Golding was asked to comment on its appropriateness and that the prescribing occurred without the necessary authority.
3. Dr Golding said that the prescription of oxycodone is indicated for the treatment of acute painful conditions and the usual dose is 5mg every three hours as required. Treatment with opioids should not be for more than three days. He said that during the ten-year period in which the Respondent was treating Patient C, as well as prescribing oxycodone, a drug which he said is associated with patient harm the Respondent was also prescribing other Schedule 8 drugs of addiction. In his opinion the volume, variety and duration of the prescriptions were excessive and will have led to dependence.
4. To prescribe in this way and to fail to obtain an authority to prescribe, Dr Golding said was conduct that fell significantly below the expected standard.
5. As to the concurrency of the prescribing of these drugs, Dr Golding said that the oxycodone prescribed was equivalent to 111mg of morphine per day and should not have exceeded prescription of the equivalent of 60mg daily. The additional opioids increased the morphine equivalent with the risk of dependency, drug interactions and patient harm. He observed that in a note, the Respondent said that Patient C's dependency was "probably" his fault for not refusing him initially.
6. In this conduct, the Respondent fell significantly below the expected standard.
7. On 24 November 2014 the Respondent received a letter from the Bungora Opioid Treatment Unit which advised him to only prescribe oxycodone for Patient C at a rate of 1 to 2 days supply to be obtained from one pharmacy location. By this time, Dr Golding noted that the Respondent had written three referrals for Patient C to attend a pain specialist, but the patient had not attended. The letters of referral referred to the patient's analgesic requirements escalating despite being warned of dependence and addiction. The Respondent did not follow the advice from the Bungora Unit and continued to prescribe oxycodone in different forms and to add in prescriptions for fentanyl and tapentadol.
8. Dr Golding considered the Respondent's conduct to fall significantly below the expected standard.

Discussion

1. There can be no doubt from the notes that the Respondent was well aware these patients were drug dependent. There are notes in the records in which the Respondent comments on the amount of drugs being taken by the patients but no note to show that he reduced the amount of the various drugs being prescribed. For example, in the notes for Patient B in March 2004, the Respondent indicates that the patient is "overdosing" on the (fentanyl) patches however he continued to prescribe them at the same rate. Similarly, a note on 6 September 11 reads: reduction plan - if starting today is 5mg per day Chicken shit says down to 40mg bd=80mg so that means he does not reduce 5mg per day …he'll do anything to get his drugs !!!
2. A note of 29 September 2011 records that the patient texted him wanting more drugs and that previous prescription was given on 23 September but all had been used by 27 September.
3. Part of a note made on 4 June 2012 reads: Still on temaze still taking 2 per night Antenex half or one per day maybe Too long on this to drag his sorry ass to try and give up just give the junkie his pills
4. Nonetheless, the Respondent continued to provide the patient with the usual prescriptions.
5. On 17 June 2013 the Respondent noted: codeine 6-8 per day OMG this is going to be hard to reduce
6. Again, the Respondent made no apparent change to the prescriptions provided to the patient.
7. In another note of 3 July 2013, the Respondent recorded that it would be a good idea for the patient to reduce the codeine because it is "very hookable"
8. There is no doubt that the Respondent well knew the risks to the patients from his prescribing.
9. In relation to Patient C there are two relevant notes. In April 2017 the note read: should be taking only 80mg bd he want to keep going for another 7 months he not going to be alive in 7 months
10. In March 2017 the Respondent wrote He running low he bad boy he knows he not supposed to use as much he also knows before when was only 210 now he got that plus extra so even badder boy might be to stop the 210 and stick to the slow release only then he would be a dead boy totally bad…
11. On 7 October 2016, the practitioner noted in Patient C's medical records incresign morphine not a good idea harder to get off and eventually could supress his breahtign bfoere hre realsises anythign is happening - ie prince. (Errors in original)
12. The duration, variety and quantity of drugs prescribed by the Respondent to these three patients, as Dr Golding remarked, had no clinical indication, they were prescribed in the face of the Respondent's clear understanding that the patients were drug dependent and without regard to their safety and he took no effective steps to assist them to reduce or exclude the drugs.
13. The Particulars of Complaint Two in relation to all three patients are made out and we find that the Respondent is guilty of unsatisfactory professional conduct. It is also alleged that he is guilty of improper and or unethical conduct. Having regard to the legal test to which we have already referred and in the context of the Respondent's notes, we find that he acted improperly and unethically.

COMPLAINT THREE

1. This complaint concerns the Respondent's record keeping and it is alleged the notes display an unprofessional attitude and reflect disrespect for the patients. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the 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; and/or ii.engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

PARTICULARS 1. The practitioner made entries in his medical records for Patients A, B and C particularised in Particulars 2 to 6, 9 to 15 and 18 to 21 below, that in their form and content were not professional and displayed a lack of respect and compassion to patients.

Patient A 2. On 23 November 2016, the practitioner entered in Patient A's medical records "misisng pills says the girlie using this Ok, will check with her if he not telig the truth then prostate check no lube!". 3. On 10 December 2016, the practitioner entered in Patient A's medical records "pain in the neck and workign bis butt off apaparently, so much for PIA motehr on lyrica and ti spun her out but ten again he not his mother so try smal and gu up as tolrated do not shove the whole thing in at once, no go!". 4. On 17 June 2017, the practitioner entered in Patient A's medical records: a. "Reaction: anaphylatic reaction. Severity: Life- Threatening itchy red and dropped his daks, had to be given more stuff to resolve teh anaphylaxis from teh iv cotnratc, name? dunno isnt it all the same- not really"; b. "...but byt he way his neck is stuffed yeah we know that! Now he is talkign like peter seller with indian accetn and head movments and looking OK"; c. "...short version he needs more drugs really, ran out of targin poor boy." 5. On 11 October 2017, the practitioner entered in Patient A's medical records "he not real smart but to smart to be the PM". 6. On 1 November 2017, the practitioner entered in Patient A's medical records "stil sore in the neck oh ah OMG and seeing dr steel tpomorrow for antoeh review to see hwat can be odne for him..." 7. By his conduct in particulars 1 to 6 of Complaint 3, the practitioner acted contrary to clause 8.4.3 of the Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).

Patient B 8. On 12 June 2001, being the first consultation the practitioner had with Patient B, the practitioner failed to document: a. any medical history obtained from Patient B during the consultation; b. any examination undertaken of Patient B during the consultation; c. supporting information to support the diagnoses recorded; d. any psychiatric diagnosis in circumstances whereby the practitioner prescribed the antidepressant, Sinequan. 9. On 21 April 2009, the practitioner entered in Patient B's medical records "chicken shit wants sickie just in case he got not enough marks - big whooze I got half hour appt for quote, top right side filign doen, got worse and worse, really wans a sickie for sore back and not ablet sit in front fo the computer". 10. On 9 November 2009, the practitioner entered in Patient B's medical records "gnostic Imaging requested CT scan of thoraco-lumbar spine please - stuffed back, previous laminectomies, a few motor bike accidents, rugby league, now young whingey bugger!". 11. On 3 May 2011, the practitioner entered in Patient B's medical records "mothe says stop smoking or else she will cut his bits off, ok I will help her!" 12. On 5 July 2011, the practitioner entered in Patient B's medical records "told not going to write anymore morphine since took all ofit in 12 days tough luck, I am not going to feed his junkie habits, nothing until at least 20th july". 13. On 6 September 2011, the practitioner entered in Patient B's medical records "he'll do anything to get his drugs!!!" 14. On 4 June 2012, the practitioner entered in Patient B's medical records "too logn ont his to drag his sorry ass to try and give up, jsut give the junkie his pills!" 15. On 11 July 2015, the practitioner entered in Patient B's medical records "in the meantime wil need to tru to reduce the crap he is on yeah he agrees but mentally, manyeb in one ear out teh other". 16. By his conduct in particular 15 of Complaint 3, the practitioner acted contrary to clause 8.4.3 of the Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).

Patient C 17. The practitioner failed to clearly document Patient C's history of opioid dependence in Patient C's medical records. 18. On 9 September 2016, the practitioner entered into Patient C's medical records "no mojo, to omany pills, funny wife no leave him yet"; and "the usual pain kilelrs ang nag nag". 19. On 7 October 2016, the practitioner entered into Patient C's medical records "incresign morphine not a good idea harder to get off and eventually could supress his breahtign bfoere hre realsises anythign is happening - ie prince." On 14 February 2017, the practitioner entered into Patient C's medical records "OK addict! He kows wil try to reduce but needs reminder again and again or get his mothers phone number! He owes 40 mg oxycotin..bad boy." On 11 April 2017, the practitioner entered in Patient C's medical records "...bad muslim! Really bad muclim may this year is ramadan again so he got 2 months to cleanup his act before allah strikes him donw if allah forget him this one remind allah". By his conduct in particulars 18 to 21 of Complaint 3, the practitioner acted contrary to clause 8.4.3 of the Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).

1. Dr Golding was asked to comment on the requirements for a practitioner's note taking by reference both Schedule 4 of the Health Practitioner Regulation (NSW) Regulation 2016 and the Medical Board of Australia, good Medical Practice; A Code for Doctors in Australia (March 2014).
2. He said in respect of the Regulation: The information which should be included in the medical record; (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: 1. any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), 2. particulars of any clinical opinion reached by the medical practitioner, 3. any plan of treatment for the patient, 4. particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient.
3. Referring to the 2020 version of the Code, Dr Golding said: S 10.5 of the Code says that: Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves: 10.5.1 Keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication, referral, and other management in a form that can be understood by other health practitioners. 10.5.4 Ensuring that the records are sufficient to facilitate continuity of patient care.
4. He considered the Respondent's notes in relation to the patients.
5. Dr Golding said that Patient A's notes do not meet the required standard for clear accurate medical record entries. He noted that in the Health Summary in the notes, the Respondent makes no reference to the history of opioid dependence although it is clearly documented elsewhere in the records. He also commented that while Endone was prescribed, under Allergies, there is a note that Endone "made him turn green".
6. In relation to Patient B, he noted that the first recorded consultation for this patient was in June 2001. There is no history recorded nor record of any examination. The Respondent noted diagnoses of: "(nerv)ous condition, (inso)mnia, ankle pain and reflux - gastro-oesophageal. There is no supporting information to support these diagnoses."
7. In relation to Patient C, Dr Golding said that the Respondent had not included in the Health Summary information that would be required to effectively communicate the medical condition of Patient C nor is there any record of opioid dependence which is clearly mentioned in the body of the notes.
8. Dr Golding said that the Respondent's notes in relation to these three patients were deficient and his conduct fell significantly below the expected standard. for clear accurate medical record entries.
9. Section 10.5.3 requires medical practitioners to: Ensur[e] that your medical records show respect for your patients and do not include demeaning or derogatory remarks
10. In relation to the entries in the notes to which the complaints refer and in particular in relation to Patient B, Dr Golding referred to a prescription written by the Respondent on 19 December 2008 which was: Cymbalta Capsule 30 mg mane for 'go go juice and grumble bum control'
11. Dr Golding said: Not only are these indications medically inaccurate and dismissive, these entries are inappropriate for the medical notes and humiliating when included on the script to be viewed by Pharmacy staff during dispensing.
12. Dr Golding also points to the notes which refer to the reactions of the patient to drugs prescribed which, he said were medically inaccurate, dismissive and inappropriately recorded drug reactions.
13. The other entries to which the complaints refer are equally scathing, demeaning or humiliating for the patients.
14. In relation to the Respondent's notes for each patient, Dr Golding said that the Respondent's conduct fell significantly below the expected standard.
15. Taking into account the provisions of the Code and the Regulation together with Dr Golding's opinion, we are of the view that these particulars have been made out and that the Respondent is guilty of unsatisfactory professional conduct.

COMPLAINT FOUR

1. This complaint relates to the Respondent's notes in relation to Patient A. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) ("the Regulation").

Particulars 1. Between 6 August 2016 and 14 March 2019, the practitioner failed to make adequate records for Patient A in accordance with Schedule 2 of the Regulation in that the practitioner failed to document Patient A's history of opioid dependence.

1. There is no note in Patient A's records in which patient details are noted including headings for the provision of information about family and social history and current medications, of his opioid addiction.
2. As the Regulation makes clear, the patient's record must include information "known to the medical practitioner who provides the medical treatment …to the patient that is relevant to the patient's diagnosis or treatment…"
3. The notes are clearly deficient and Dr Golding's opinion is that in this respect the Respondent's conduct fell significantly below the expected standard.
4. We find this complaint made out.

COMPLAINT FIVE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 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 the suspension or cancellation of the practitioner's registration

PARTICULARS The particulars of Complaints 1, 2, 3 and 4 are repeated and relied upon individually and cumulatively.

1. Section 139E of the National Law defines professional misconduct as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or 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 the suspension or cancellation of the practitioner's registration.
2. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], the Court characterised professional misconduct: "19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. … Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …"
3. A finding of professional misconduct does not necessarily dictate cancellation or suspension of the practitioner's registration, however by its terms it clearly speaks to serious conduct.
4. The Commission argued that the totality of the conduct referred to in Complaint One amounts to professional misconduct. The Respondent agreed that his conduct to which he admitted was sufficient to justify this finding. We are satisfied that all of the particulars having been made out and each of the complaints proved, amount to professional misconduct.
5. The Respondent's sexual conduct towards his patients was not only an egregious breach of his professional obligations but was predatory and done in the knowledge that these patients were addicted to drugs. Although the Respondent sought to assert that there was a "relationship" or "friendship" between him and patient B and C, for the reasons already discussed, we reject it.
6. The Respondent's prescription of vast quantities of narcotic analgesia to drug addicted patients often without authority and with no effective attempts to wean them off or assist them to reduce the quantity of drugs is disgraceful. It was argued for the Respondent that he made efforts to help the patients moderate their intake. While the notes reflect that the Respondent had conversations with the patients about the drugs they were taking and their effect and extracted promises from them to cut down, he nonetheless continued to prescribe at the same rate, indeed he sometimes increased the doses of the prescribed drugs.
7. The Respondent's notes failed to meet the requirements necessary to provide information about the patient and the care provided but that he would include crude, demeaning and frankly disgusting comments about his patients, is difficult to understand.
8. The Tribunal is satisfied that the Respondent is guilty of professional misconduct.

Protective Orders

1. In determining what orders are appropriate there is no better place to start that Health Care Complaints Commission v Do [2014) NSWCA 307, Meagher JA (with whom Basten and Emmett JJA agreed) said at [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.
2. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Santow JA said that the orders not only protect and maintain high standards but: "…There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so".
3. In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] Basten JA said As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist. (citations omitted)
4. The Commission sought orders: 2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law with a non-review period of 10 years. 3. A prohibition order pursuant to s 149C(5)(a) prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed; 4. An order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law
5. The Respondent consented to the orders sought by the Commission except as to costs. It is undisputed that the Tribunal has the power to order a practitioner to pay costs. The Tribunal has adopted the approach that costs in general follow the event. The presumption that the successful party is entitled to receive their costs is, generally, only displaced where there has been some disentitling conduct by that party. (Oshlack v Richmond River Council [1998] HCA 11 and see too Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42])
6. Here, there is no reason why the Respondent should not pay the Commission's costs as sought.

Orders 1. Pursuant to s 149C(1)(b) of the National Law the Respondent's registration is cancelled from the date of these orders and he may not apply for a review of that order for 10 years. 2. Pursuant to s 149C(5)(a) order that the Respondent be prohibited from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for a period of 10 years. 3. An order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law.

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: 01 November 2024