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[2012] NSWCA 80
mixed. The practitioner was reprimanded in respect of both complaints, his registration made subject to strict practice and health conditions (including prohibition on prescribing Schedule 8 or 4D drugs,...
Dr Jones over-prescribed strong addictive medicines to seven patients who showed clear signs of dependency, failed to keep proper notes, and wrote future-dated scripts just before a hearing that was about to stop him prescribing those drugs. The Tribunal accepted he had broken the rules and acted unprofessionally enough to amount to misconduct. Instead of striking him off, it chose to let him keep practising under very tight rules: he cannot prescribe the dangerous drugs at all, must work in a group practice with a supervisor looking over his shoulder, have a separate mentor, have his records audited regularly, and pay a $10,000 fine for the sneaky post-dated scripts. The Tribunal decided this package would protect patients without removing a needed doctor from the Central Coast.
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Dr Peter Edwin Jones had practised as a general practitioner on the New South Wales Central Coast for many years. Between October 2008 and September 2009 he saw seven patients (anonymised as Patients A to G) who presented with pain and mental-health issues. Over that period he issued repeated prescriptions for benzodiazepines (alprazolam, diazepam, oxazepam, clonazepam) and high-dose opioids (oxycodone in 20 mg, 40 mg and 80 mg strengths, fentanyl patches, morphine sulphate injections and oral solution, and methadone/Physeptone). Many of these prescriptions were issued without the authorities required under s 28 of the Poisons and Therapeutic Goods Act 1966 and in quantities or for purposes that did not meet recognised therapeutic standards (cll 54 and 79 of the Poisons and Therapeutic Goods Regulation 2008). The quantities were, on any view, large: for example, Patient C received oxycodone 80 mg on 119 occasions and fentanyl patches on 29 occasions; Patient E received oxycodone 80 mg on 57 occasions. Dr Byrne, the drug-and-alcohol expert retained by the Health Care Complaints Commission, described the prescribing to Patient B as “grossly negligent and irresponsible” ([40]) and the treatment of Patient G as “highly inappropriate and dangerous” ([41]).
The medical records for these patients were “of a poor quality” ([37]). They contained warning signs of dependency that were not acted upon. No referrals to pain clinics, drug-and-alcohol services or psychiatrists were documented, nor were urine tests, injection-site examinations or pharmacist liaison recorded. On 30 July 2010 the Medical Council of NSW notified Dr Jones that s 150 proceedings would be held on 11 August 2010. On 9 and 10 August 2010 he wrote three post-dated prescriptions: one for Patient A dated 13 August 2010 for Physeptone, one for Patient B dated 20 August 2010 for nitrazepam, and one for Patient C dated 1 September 2010 for buprenorphine patches. These prescriptions breached the prohibition on post-dating and were written in the knowledge that restrictions on his authority to prescribe Schedule 8 and Schedule 4D drugs were likely to be imposed.
Two complaints were brought by the Commission. The First Complaint concerned the 2008–2009 prescribing and record-keeping. The Second Complaint concerned the three post-dated prescriptions. Dr Jones ultimately admitted both unsatisfactory professional conduct and professional misconduct. After a two-day hearing on 30–31 July 2012 the Tribunal delivered its decision on 1 August 2012. It found both complaints proven to the Briginshaw standard, reprimanded Dr Jones, imposed an extensive suite of conditions on his registration, ordered him to pay a $10,000 fine for the Second Complaint, and ordered him to pay the Commission’s costs.
The Tribunal began from the settled proposition that its orders “should not be punitive; they should be protective of the public and of the medical profession” ([29]). It treated the two complaints separately because the First Complaint raised “issues of practice” while the Second raised “acts of inappropriate conduct” ([30]). In relation to the First Complaint the Tribunal relied heavily on Dr Byrne’s unchallenged report. That report demonstrated that even the limited notes Dr Jones had made contained “beacons” of dependency that were ignored ([37]). The prescribing showed “no indication of insight into the patient’s need for … psychological approaches nor of addiction medicine” ([38]). In some cases the treatment was “grossly negligent” or “dangerous” ([40]–[41]).
Against that seriousness the Tribunal weighed a number of protective factors. Dr Jones had expressed “true contrition” ([23]) and had completed the prescribed education course. He now practised in a group setting at Wyoming Medical and Dental Centre, reducing the isolation that had contributed to his earlier decisions. Multiple colleagues gave evidence that he was a competent and caring doctor whose skills would be missed on the under-doctored Central Coast ([32]–[34]). Dr Westmore’s psychiatric opinion supported conditions rather than cancellation, and the Commission itself indicated that conditions could “accommodate the outcome appropriately” ([44]). The Tribunal therefore concluded, “with some hesitation” ([48]), that a prohibition on prescribing Schedule 8 and 4D drugs, coupled with Level 2 supervision, independent mentoring, regular random audits, and critical compliance conditions, would sufficiently remove the risk of harm.
The Second Complaint attracted an additional deterrent element. The Tribunal found that Dr Jones had written the post-dated scripts with a “degree of intent to circumvent” both the bar on post-dating and the likely imposition of restrictions ([56]). His explanation to Dr Westmore that the scripts were written for “patient convenience” was inconsistent with the timing and with his own awareness of the impending s 150 hearing ([53]–[55]). A $10,000 fine was therefore imposed as a specific deterrent, and a reprimand was ordered for both complaints.
Prior to this decision the law was clear that repeated inappropriate prescribing of drugs of addiction, especially to known dependent persons without authority, could amount to professional misconduct (s 139E). The decision restates and applies the protective principle articulated in earlier authorities and confirms that the Briginshaw standard governs the fact-finding exercise in the Medical Tribunal ([22]). The decision also illustrates that post-dating prescriptions to defeat anticipated regulatory action will ordinarily be viewed as particularly serious.
After the decision the law remained unchanged in its statutory text, but the Tribunal’s detailed conditions have become a template for similar cases. The formulation of “critical compliance conditions” whose breach automatically triggers cancellation has been used in subsequent matters. The emphasis on a combination of prescribing prohibition, on-site supervision, independent mentoring, and regular medical-record audits has been repeated in later Tribunal decisions involving impaired or boundary-violating practitioners. The decision also underscores that even experienced practitioners with otherwise good reputations will face significant sanctions where insight is lacking and large volumes of addictive medication are supplied without oversight.
Paragraph [29]: “As a general and introductory statement, the Tribunal is aware that any orders made should not be punitive; they should be protective of the public and of the medical profession.”
Plain English: Our job is to stop patients being harmed and to keep trust in doctors, not to punish Dr Jones.
Paragraph [37]: “Each of these entries should have acted as a beacon that his patients need treatment for their dependency rather than continued access to unsupervised drugs on request.”
Plain English: Even the skimpy notes Dr Jones wrote should have been flashing red lights telling him to stop handing out pills and get the patients proper addiction help.
Paragraph [42]: “To say of a doctor that his treatment is dangerous and his practices are grossly negligent must raise a high degree of concern if that doctor is treating members of the public.”
Plain English: When an expert says a doctor’s work is dangerous and grossly negligent, any responsible regulator has to take that extremely seriously.
Paragraph [48]: “The opinion of the Tribunal, reached it should be said with some hesitation, is that Dr Jones should be allowed to continue to practise but subject to conditions.”
Plain English: We thought long and hard about whether to strike him off, but in the end we decided strict rules would keep patients safe while letting him keep working.
Paragraph [56]: “The Tribunal is satisfied that there was a degree of intent to circumvent not only the bar on post-dating prescriptions but also on the possible imposition of restrictions.”
Plain English: We are sure Dr Jones wrote the future-dated scripts on purpose to get around the ban he knew was coming.
This decision is triggered when a general practitioner in solo or low-support practice supplies large volumes of Schedule 8 opioids or Schedule 4D benzodiazepines to patients who display signs of dependency, without obtaining the required authorities, without documenting any structured management plan, and without referral to specialist services. It is especially engaged where the practitioner has previously been the subject of regulatory attention for over-prescribing. The precedent also applies where a practitioner writes post-dated prescriptions for restricted substances immediately before a known regulatory hearing that is likely to curtail prescribing rights. Poor or absent medical records that fail to record mood assessment, risk discussion, or follow-up arrangements will ordinarily lead to a finding of unsatisfactory professional conduct. The combination of these elements, when viewed cumulatively, will usually satisfy s 139E.
Subsequent decisions of the Civil and Administrative Tribunal (which replaced the Medical Tribunal) have treated the reasoning as authoritative on the protective purpose of orders and the circumstances in which conditions may be preferred to cancellation. The detailed conditions set out in Annexure 3 have been adopted, with minor variations, in numerous matters involving inappropriate opioid prescribing. The characterisation of post-dated prescriptions written on the eve of a s 150 hearing as intentional circumvention has been followed in cases where practitioners have sought to “grandfather” patients before regulatory restrictions took effect. The Tribunal’s acceptance that a move from solo to group practice, combined with supervision and mentoring, can sufficiently reduce risk has been cited with approval in matters concerning isolated practitioners. No later court has cast doubt on the application of the Briginshaw standard or the non-punitive principle stated at [29].
The decision leaves open the precise weight to be given to a practitioner’s financial or family stressors when those stressors are said to explain, but not excuse, boundary failures in prescribing. It does not definitively state the minimum period that must elapse before a practitioner who has surrendered Schedule 8 authority can apply for its restoration. The interaction between the critical compliance conditions and a practitioner’s right to seek review under Part 8 Division 8 of the National Law when practising interstate remains to be tested in a contested review application. Finally, the decision does not explore the circumstances in which a fine might be imposed in addition to conditions in a purely prescribing case that does not involve deliberate circumvention of an impending hearing. These issues continue to be worked through in later matters before the Council and the Tribunal.
Judgment 1The Health Care Complaints Commission ("HCCC") has made two complaints against Dr Peter Jones. The first is dated 30 August 2011. The second is dated 22 December 2011. A little confusingly each complaint is made up of two complaints called Complaint 1 and Complaint 2. 2In a hopeful attempt to avoid confusion, the complaint dated 30 August 2011 will be referred to as the First Complaint and the complaint dated 22 December 2011 will be referred to as the Second Complaint. These two complaints are annexed to these reasons as Annexures 1 and 2 respectively. 3The First Complaint is concerned with the improper prescription of certain drugs to seven patients and also with a failure to keep proper records. Complaint 1 within the First Complaint alleges that the doctor is guilty of unsatisfactory professional conduct within Section 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the "National Law"). Complaint 2 in the First Complaint relies on the same particulars but asserts that the doctor has been guilty of professional misconduct within Section 139E of the National Law. 4The Second Complaint concerns the writing of three post-dated prescriptions by Dr Jones for drugs of addiction or prescribed substances. The inference is that these prescriptions were written with the intention of defeating conditions that were likely to be placed on Dr Jones' continuing practice. Once again the Second Complaint alleges unsatisfactory conduct under Section 139B in Complaint 1 and professional misconduct under Section 139E in Complaint 2.
Dr Jones' background 5Dr Jones was born in Newcastle, New South Wales, in 1949. In 1972 he graduated with a degree of MBBS from the University of New South Wales. 6Dr Jones then carried out various residency requirements until 1977. 7In 1977 he obtained Diplomas in Child Health and Obstetrics and Gynaecology in London. In October 1977 Dr Jones entered general practice in Wahroonga. In 1979 he started practising on the Central Coast at Umina Beach. 8In March1981 restrictions were placed on Dr Jones' prescribing rights due to "over prescribing without authority". Prescribing rights were restored in October 1981. The only formal documents relating to this history are excerpts from the Government Gazette in April and October 1981. (Exhibit A, Tabs 33 and 34). 9Dr Jones was asked about the 1981 events when he gave his oral evidence. He said that as a new doctor he had been targeted as someone from whom it was easy to obtain prescriptions. He said that the type of patients he was then seeing were different to those with whom he was concerned in 2008 and 2009 (ie the subjects of the first complaint). The Tribunal was concerned that Dr Jones had not learned the lesson from his former conduct but also takes into account that there were no complaints between 1981 and 2008. 10The other significant difference, according to Dr Jones, was that the patients dealt with in the First Complaint appeared to be in genuine pain and have real mental status issues. This was, in fact, a theme through Dr Jones' evidence, namely that he was principally motivated by his empathy for the patients' predicaments. 11Dr Jones spent two years from 1982 working as a general practitioner in Hong Kong. He returned to Umina Beach in 1984. 12In 2007 Dr Jones and his then partner (now wife) were involved in a serious motor vehicle accident in the United States of America. Dr Jones suffered fractures to both legs and his left arm. He returned to work, initially in a wheelchair, after about 9 weeks. He said this was generated in part by the medical bills that had been incurred in the USA. His partner's injuries were more extensive and have involved extensive surgical intervention. More surgery is envisaged. 13Dr Jones was asked about the medical expenses that arose from the motor vehicle accident during his oral evidence. The Tribunal is of the view that his evidence was unsatisfactory. Dr Jones said that in about 2008 he received a payout from a suit commenced in the USA arising from the motor vehicle accident. He gave this evidence: "Q. Any legal proceedings come out of that accident, civil or criminal? A. No. We did sue the driver of the other vehicle, yes, to but through American lawyers. Q. Did that result in anything or? A. Yes, it resulted in some pay out and coverage of our multiple fees that we had over there but we had considerable large considerably large hospital bills which just wouldn't have been covered otherwise; they weren't covered by the travel insurance. Q. But were they covered by the pay out? A. They were covered by the law suit, yes." (T 8.22) 14This evidence is inconsistent with the contents of his statement dated 9 August 2010 in which, at paragraph 48, he says: "The medical expenses associated with the accident, including medical care overseas and in Australia for both me, but more so for my wife, have caused extreme financial hardship. Whilst we had travel insurance, it has not been sufficient to cover the ongoing medical treatment that my wife requires. Accordingly, it would be extremely burdensome on me and my family if I were unable to work." (Exhibit 1, Tab 3). 15From October 2010 and continuing to the present day Dr Jones has been in general practice at the Wyoming Medical and Dental Centre in Wyoming.
Earlier proceedings 16Dr Tony Webber carried out a Professional Services Review on referral from Medicare Australia. Dr Webber's report is dated 1 June 2010 (Exhibit A, Tab 36). It was sent to the Medical Council which, consequently, wrote to Dr Jones informing him that it had decided to hold proceedings under Section 150 of the National Law. The proceedings were held on 11 August 2010 and resulted in the imposition of Practice Conditions and a Health Condition on Dr Jones' registration. 17The formal decision is dated 9 September 2010 (Exhibit A, Tab 30B). 18The most significant of the Practice Conditions was that Dr Jones was required to surrender his authority to deal with any Schedule 8 drug or any Schedule 4D drug or derivative. In addition, he was required to complete a course on "issues and general practice prescribing". The Health Condition required Dr Jones to consult and be treated by a general practitioner. 19Dr Jones has completed the above course. 20Following the Section 150 proceedings Dr Jones signed statements agreeing to the orders in respect of the Schedule 8 and Schedule 4D conditions.
Dr Jones' response to the First Complaint 21Dr Jones has made two statements. The first, dated 9 August 2010, is behind Tab 3 in Exhibit 1. The second, dated 29 February 2012, is behind Tab 1 of the same exhibit. 22In the above two statements Dr Jones gives explanations for his conduct. However, he does not dispute any of the alleged facts and he accepts that he has been guilty of both unsatisfactory professional conduct and professional misconduct as alleged. On the basis of these admissions and having regard to the evidence generally, the Tribunal finds the First Complaint (comprising Complaint 1 and Complaint 2) has been proven to the necessary standard. This standard is the balance of probabilities but applied as stipulated in Briginshaw v Briginshaw (1938) 60 CLR 336. 23In his statements Dr Jones not only admits his wrongdoing but expresses his remorse. He concludes his second statement in this way: "I can indicate to the Medical Tribunal that I am truly contrite for my behavior, the subject of this Complaint. Whilst I did not see it at the time in question, I now readily accept my prescribing was inappropriate. I am keen to make amends for my conduct and I am of the view I still have much to offer the patient population of the Central Coast of NSW."
Dr Jones' response to the Second Complaint 24Dr Jones' response is set out in a statement dated 29 February 2012. It is in Exhibit 1 behind Tab B1. In this statement Dr Jones admits that his activities amount to unsatisfactory professional conduct. He did not, however, admit that he had been guilty of professional misconduct. 25At the commencement of final addresses counsel for Dr Jones indicated that his client now accepted that he had been guilty of professional misconduct. The Tribunal observes that on the evidence before it this concession was essentially an admission of an inevitable result. 26In his statement Dr Jones says that it was not his normal practice to issue post-dated prescriptions but he did so "for three of my regular patients because I was concerned that they may not be able to arrange to consult with another practitioner within a reasonable timeframe and I was concerned to ensure that they had sufficient medication to enable them to find a new general practitioner and seek to prevent those patients from experiencing serious withdrawal symptoms." 27It is to be recalled that the three prescriptions in question were written two days before the Section 150 proceedings. The inference is that they were post-dated to defeat what Dr Jones would have regarded as the likely result of the proceedings, namely that he would no longer be able to write prescriptions in respect of the same types of medication. Dr Jones' explanation is essentially one that says: 'I did the wrong thing but did so for the benefit of the patients'. 28Once again, on the basis of the admissions and the evidence before it, the Tribunal is satisfied that Dr Jones was guilty of unsatisfactory professional conduct under Section 139B of the National Law and of professional misconduct under Section 139E.
Orders: First Complaint 29As a general and introductory statement, the Tribunal is aware that any orders made should not be punitive; they should be protective of the public and of the medical profession. 30The Tribunal considers it appropriate for separate orders to be made for each of the complaints. This is to reflect the Tribunal's view that the First Complaint is concerned with issues of practice whereas the Second Complaint more relates to acts of inappropriate conduct. 31Dr Jones submitted that he should be allowed to continue to practise but only on the basis of conditions on his registration. He is supported by Dr Westmore, a psychiatrist, who suggests a number of conditions that would "reduce and probably eliminate his propensity for re-offending." (Exhibit 1, Tab 5). 32Dr Caska is a general practitioner also practising on the Central Coast. In his letter of 6 March 2012 he highlights the absence of local facilities for the treatment of addicted patients. He refers to the stresses that Dr Jones has endured following his motor vehicle accident and talks of his "highest regard for Dr Jones' character and professionalism". Perhaps most importantly he concludes: "It would be a great loss to patients in this under doctored area to lose the skills and services of such an experienced and competent doctor". 33Dr Chandramohan, a general practitioner in Wyoming, makes this point, concerning re-offending, in his letter dated 1 February 2012: "Possibly his caring attitude and the pressure of working in a solo practice is what led up to this situation, however, he now has the support of multiple Doctors and therefore less pressure from patients." 34Dr Mala expresses a similar sentiment in his report of 28 February 2012. He concludes: "Certain patients can be intimidating and when you don't have the immediate support of colleagues around you it can lead to exactly this type of situation." 35There are other character references in Dr Jones' material but the most significant points have been made above. 36In order to appreciate the seriousness and extent of Dr Jones' conduct it is necessary to refer to the unchallenged opinion of Dr Byrne, the drug and alcohol expert retained by the HCCC to provide an opinion. Dr Byrne's report is in Exhibit A behind Tab 13. 37In relation to Dr Jones' handwritten medical notes he says they are "of a poor quality". Notwithstanding this observation, Dr Byrne says that the notes did contain certain warnings that were ignored by Dr Jones. Dr Byrne says: "Each of these entries should have acted as a beacon that his patients need treatment for their dependency rather than continued access to unsupervised drugs on request". 38A little later, Dr Byrne says: "On reading Dr Jones' medical records concerning patients being prescribed quantities of benzodiazepines and opioids, one rarely reads any indication of insight into the patient's need for the most basic elements of either psychological approaches nor of addiction medicine. While the former would include mood evaluation, cognitive behavioural approaches, focussed counselling and possibly pharmacotherapy, the latter should include simple measures such as pharmacy supervised medication, urine testing, examination of common injection sites, discussions with the patient's pharmacist, Health Department facilities for identifying such patients (PSB authorities phone-line NSW Health; Doctor Shopping Hotline; Medicare Australia), etcetera." 39Dr Byrne's criticism of Dr Jones' record keeping is thus both a condemnation of the records themselves as well as Dr Jones' failings in appreciating the significance of the even simple and unsatisfactory records. 40In his report Dr Byrne examines material in relation to each of the patients who are the subject of complaint. The level of criticism is different in respect of each patient but in some cases it is very strident. For example, in respect of Patient B Dr Byrne says: "It is my belief that most doctors of good repute in New South Wales would agree that the prescribing to [Patient B] during this period of 2008/9 was grossly negligent and irresponsible." 41When dealing with Patient G, Dr Byrne says that Dr Jones' treatment was "highly inappropriate and dangerous ...". Dr Byrne continues a little later: "In this case Dr Jones either knew or ought to have known that the patient was an addicted person. Prescribing should therefore have been very limited (if at all) while the patient was referred to a drug clinic, community health, pain clinic, psychiatry or other services. Even if this patient were not addicted, it is still illegal to supply methadone for longer than 2 months without written authority." 42Dr Byrne was not required for cross-examination. His analysis and his opinion were therefore not challenged. To say of a doctor that his treatment is dangerous and his practices are grossly negligent must raise a high degree of concern if that doctor is treating members of the public. 43On the basis of the above there is an arguable case for deregistration. 44At the outset of the hearing, counsel for the HCCC was asked what orders would be advocated by the HCCC. He replied: "Essentially the position is that suspension or deregistration would be open but it would appear to be a case where conditions could accommodate the outcome appropriately, if I could put it that way." 45In addition, having had the opportunity to take further instructions at the end of the evidence, counsel did not signal any change in the HCCC's position. The Tribunal is mindful that it has the capacity to impose orders that exceed (in severity) those sought by the HCCC but should not do so lightly. 46On Dr Jones' side, the following considerations are relevant: (a)The doctor's most serious failings arise from his prescription of Schedules 8 and 4D drugs. If he is not allowed to prescribe these drugs his capacity to harm is removed. (b)Dr Jones otherwise has glowing references concerning his attributes as a doctor and his treatment of his patients. (c)Practising in a group practice removes many of the stresses and temptations to which Dr Jones was otherwise susceptible. (d)The Central Coast is in need of doctors. The area should not be unnecessarily deprived of a doctor with a long association to the area and intent on remaining a local doctor. (e)Conditions could be tailored to reduce the risk of re-offending and ensuring the proper keeping of records. (f)The HCCC did not require Dr Westmore for cross-examination and did not put forward any opinion challenging Dr Westmore's view that Dr Jones be allowed to practise with conditions. 47Ultimately the Tribunal's decision must be dictated by whether it would be to the benefit of the public to deregister Dr Jones or, alternatively, allow him to continue to practice with conditions. 48The opinion of the Tribunal, reached it should be said with some hesitation, is that Dr Jones should be allowed to continue to practise but subject to conditions. 49The Tribunal asked the parties to consider proposed conditions so as to create a workable regime. The Tribunal has made some changes to the proposed conditions where it felt they were needed to ensure the protection of the public. The parties were given the opportunity to address changes suggested by the Tribunal to the conditions. 50The Tribunal's view is that the conditions should include both on site supervision together with mentoring by another general practitioner not involved in the same practice. 51The conditions are those set out in Annexure 3 to these reasons.
Orders: Second Complaint 52Dr Jones sought to justify his actions on the basis that he was motivated by his concern for the patients. However, there is a further element to his actions which needs to be dealt with, in particular as Dr Jones did not appropriately deal with it himself. 53Dr Jones relies on a report from Dr Westmore (Exhibit 1, Tab 5) which includes the following passages of history: "I asked him had there been any "breaches" in his prescribing behaviour since his prescribing rights were removed. He said "there have been several issues". Dr Jones then told me that prior to him being advised that he could not prescribe certain medication, he had for several patients, "fore dated scripts". He said he had done that not because he knew or believed that he was going to lose his prescribing rights, but he did that for the patient's "convenience" and so that the patients could have some control over their medication and use of medication." 54Dr Jones did not dispute the accuracy of the history given to Dr Westmore. It clearly omits Dr Jones' obvious appreciation at the time that he faced a real possibility that restrictions would be imposed on his rights to prescribe on 11 August 2010. 55When writing the three prescriptions he was aware that post-dating prescriptions was not allowed and he was aware of the possibility just outlined above. 56The Tribunal is satisfied that there was a degree of intent to circumvent not only the bar on post-dating prescriptions but also on the possible imposition of restrictions. The Tribunal is of the view that this is particularly serious conduct and amounts to professional misconduct as alleged in Complaint 2 of the Second Complaint. 57The Tribunal is of the view that the orders for this complaint should include a deterrent factor. This arises from the Tribunal's finding that Dr Jones deliberately ignored the bar on post-dating prescriptions as well as attempting to circumvent the likely imposition of restrictions on his prescription rights. 58A fine of $10,000 is considered the appropriate order. 59The Tribunal is also of the view that Dr Jones conduct was such as to require that he be reprimanded in respect of both complaints. 60The Tribunal makes the following orders: (1)The Practitioner is reprimanded in respect of both complaints. (2)The Practitioner is subject to conditions on his registration as set out in Annexure 3 to these reasons. (3)The conditions may be reviewed by the Medical Council of NSW under Part 8 of Division 8 of the Health Practitioner Regulation National Law (NSW). The Medical Council is the appropriate review body for those purposes. However, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place is anywhere in Australia other than in New South Wales, so that a review of the conditions may be conducted by the Medical Board of Australia. (4)Dr Jones is fined $10,000 in respect of the Second Complaint. Payment is to be made to the Medical Council of NSW within 90 days of these orders. (5)The practitioner is to pay the complainant's costs in the proceedings.
ANNEXURE 1 NO. of IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES CONSTITUTED UNDER SECTION 165 OF THE HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) IN THE MATTER OF DR PETER EDWIN JONES, a person registered under the Health Practitioner Regulation National Law (NSW)
NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following a consultation 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") THAT: Dr Peter Edwin Jones of XXX Umina NSW 2257 ("the practitioner"), being a medical practitioner registered under the National Law,
COMPLAINT ONE is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) of the National Law in that he has demonstrated that the knowledge or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and has contravened the Medical Practice Regulation 2008 (repealed).
PARTICULARS At all relevant times the practitioner was a General Practitioner practicing in a solo practice at Umina, New South Wales.
Patient A 1Between 10 October 2008 and 7 September 2009 the practitioner prescribed benzodiazepines for Patient A on the dates and quantities set out in schedule A without exercising responsible medical judgement. 2Between 10 October 2008 and 29 September 2009 the practitioner prescribed Patient A alprazolam 2mg x 50 on sixteen occasions and diazepam 5mg x 50 on fourteen occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient B 3Between 10 November 2008 and 28 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient B on the dates and quantities set out in schedule B without exercising responsible medical judgement. 4Between 10 November 2008 and 28 September 2009 the practitioner prescribed Patient B alprazolam 2mg x 50 on four occasions and diazepam 5mg x 50 on ten occasions and oxazepam on thirty-seven occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008. 5Between 26 February 2009 and 17 April 2009 the practitioner prescribed Patient B oxycodone 40mg x 20 on six occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 79 of the Poisons and Therapeutic Goods Regulation 2008. 6Between 25 February 2009 and 7 September 2009 the practitioner prescribed Patient B oxycodone 80mg x 20 on thirty occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 79 of the Poisons and Therapeutic Goods Regulation 2008.
Patient C 7Between 13 October 2008 and 30 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient C on the dates and quantities set out in schedule C without exercising responsible medical judgement. 8Between 13 October 2008 and 30 September 2009 the practitioner prescribed Patient C, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 80mg on one hundred and nineteen occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 9Between 23 June 2009 and 30 September 2009 the practitioner prescribed Patient C, a person whom he knew was a drug dependent person, a a type C drug of addiction, namely fentanyl 12.5 mg patches x 5 on twenty-nine occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 10Between 23 February 2009 and 25 September 2009 the practitioner prescribed to Patient C alprazolam 2mg x 50 on seven occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient D 11Between 13 October 2008 and 30 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient D on the dates and quantities set out in schedule D without exercising responsible medical judgement. 12Between 2 October 2008 and 30 September 2009 the practitioner prescribed Patient D, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 40mg x 20 on twenty-nine occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 13Between 8 September 2009 and 15 September 2009 the practitioner prescribed Patient D, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 80mg x 20 on two occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 14Between 9 March 2009 and 25 September 2009 the practitioner prescribed to Patient D, alprazolam 2mg x 50, on ten occasions in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient E 15Between 13 October 2008 and 30 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient E on the dates and quantities set out in schedule E without exercising responsible medical judgement. 16Between 13 October 2008 and 30 September 2009 the practitioner prescribed Patient E, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 20mg x 20, on fifty-three occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 17Between 13 October 2008 and 30 September 2009 the practitioner prescribed Patient E, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 40mg x 20, on six occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 18Between 24 November 2008 and 30 September 2009 the practitioner prescribed Patient E, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 80mg x 20, on fifty-seven occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 19Between 9 March 2009 and 12 September 2009 the practitioner prescribed to Patient E alprazolam 2mg x 50 on ten occasions in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient F 20Between 13 October 2008 and 14 January 2009 the practitioner prescribed benzodiazepines and narcotics to Patient F on the dates and quantities set out in schedule F without exercising responsible medical judgement. 21Between 4 November 2008 and 12 January 2009 the practitioner prescribed to Patient F, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 20mg x 20 on six occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 22Between 18 November 2008 and 14 January 2009 the practitioner prescribed to Patient F, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 40mg x 20 on four occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 23Between 22 October 2008 and 17 November 2009 the practitioner prescribed to Patient F, a person whom he knew was a drug dependent person, a type C drug of addiction, namely morphine sulphate 30mg x 20 on two occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966. 24Between 20 October 2008 and 5 January 2009 the practitioner prescribed to Patient F clonazepam 2mg x 200 on two occasions for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008. 25Between 20 September 2008 and 5 January 2009 the practitioner prescribed to Patient F oxazepam 30mg x 25 on six occasions for a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient G 26Between 1 October 2008 and 29 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient G on the dates and quantities set out in schedule G without exercising responsible medical judgement. 27Between 15 October 2008 and 29 September 2009 the practitioner prescribed to Patient G a type B drug of addiction, namely morphine sulphate injections 30mg in 1 mL x 5, on one hundred and sixty-one occasions for a period exceeding two months without an authority issued by the Department of Health, in contravention of section 28(2)(a) of the Poisons and Therapeutic Goods Act 1966. 28Between 18 September 2008 and 30 September 2009 the practitioner prescribed to Patient G, a type B drug of addiction, namely Physeptone (methadone) 10mg x 20 on five occasions and 10mg x 10 on one hundred and thirty-eight occasions without an authority issued by the Department of Health for a period exceeding two months, in contravention of section 28(2)(a) of the Poisons and Therapeutic Goods Act 1966. 29Between 18 September 2008 and 29 September 2009 prescribed Patient G a combination of physeptone (methadone), morphine oral solution 200ml (5mg/ml)) and morphine sulphate injections in quantities and/or for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances in contravention of clause 79 of the Poisons and Therapeutic Goods Regulation 2008.
Medical Records 30The practitioner failed to keep proper medical records for Patients A to G in accordance with the requirements of the Medical Practice Regulation 2008 (now repealed).
COMPLAINT TWO Has been guilty of professional misconduct within the meaning of section 139E of the National Law (NSW) in that he has: (i)Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or (ii)Has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
PARTICULARS OF COMPLAINT TWO Particulars 1-30 above are relied upon and repeated Dated this 30th day of August 2011 Karen Mobbs Director of Proceedings Health Care Complaints Commission
ANNEXURE 2 NO. of IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES CONSTITUTED UNDER SECTION 165 OF THE HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) IN THE MATTER OF DR PETER EDWIN JONES, a person registered under the Health Practitioner Regulation National Law (NSW)
NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation 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 ("the National Law") THAT Dr Peter Edwin Jones ("the practitioner"), XXX Wyoming NSW 2250, being a medical practitioner registered under the National Law
COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i)demonstrated the 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. (ii)engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
PARTICULARS OF COMPLAINT ONE At all relevant times the practitioner was working as a general practitioner in a sole practice at XXX Umina. On 1 June 2010 the Medical Council of NSW received information from the Professional Services Review alleging that the practitioner had engaged in prescribing practices which posed a significant threat to the life or health of other people. On 30 July 2010 the Medical Council of New South Wales wrote to the practitioner and advised him that the Council had determined to hold proceedings under section 150 of the National Law to determine whether any action should be taken, either suspending or placing conditions upon his practice. On 9 August 2010 the practitioner's legal representative wrote to the Medical Council, enclosing a statement that the practitioner intended to rely upon at the section 150 proceedings. 1On 9 August 2010 the practitioner wrote a prescription dated 13 August 2010 for Patient A for 20 10mg tablets of Physeptone, a drug of addiction, contrary to: (a)Clause 19(1)(c) of the National Health (Pharmaceutical Benefits) Regulations 1960 (b)Clause 35(1)(a) of the Poisons and Therapeutic Goods Regulation 2008. 2On 9 August 2010 the practitioner wrote a prescription dated 20 August 2010 for Patient B for 25 5mg Nitrazepam tablets, a prescribed restricted substance, contrary to: (a)Clause 19(1)(c) of the National Health (Pharmaceutical Benefits) Regulations 1960 (b)Clause 35(1)(a) of the Poisons and Therapeutic Goods Regulation 2008. 3On 10 August 2010 the practitioner wrote a prescription dated 1 September 2010 for Patient C for 2 5mg Buprenorphine Transdermal patches, contrary to: (a)Clause 19(1)(c) of the National Health (Pharmaceutical Benefits) Regulations 1960 (b)Clause 35(1)(a) of the Poisons and Therapeutic Goods Regulation 2008.
COMPLAINT TWO 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 TWO As for Complaint One Dated 22 December 2011 Karen Mobbs Director of Proceedings Health Care Complaints Commission
Practice (Public) Conditions The Tribunal makes an order that the practitioner's registration be subject to the following conditions: 1To not prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). (a)Unless this has already occurred, to attend the offices of the Pharmaceutical Services Branch of the NSW Department of Health within two weeks of this decision and surrender his authority to have possession of, prescribe, supply, dispense, administer or handle any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). (b)Any future change in his Schedule 8 or Schedule 4D authority must be in accordance with the Medical Council's protocol. This must include consultation with the Medical Council of NSW prior to the submission of any variation application to the Pharmaceutical Services Branch. 2To practise only in a group general practice (group is defined as at least 3 practitioners) with at least one other medical practitioner always on site, or such other position for which he has obtained the Medical Council's prior written approval. 3The Tribunal orders that contravention of Conditions 1(a) or 2 will result in the practitioner's registration being cancelled. Conditions 1(a) and 2 are therefore Critical Compliance Conditions. 4To practise only under supervision in accordance with Clause 5 below. 5To nominate a supervisor to be approved by the Council to monitor and review Dr Jones' clinical practice and compliance with Practice Conditions in accordance with Level 2 Supervision as contained in the Council's Guidelines for Supervision (Policy PCH 7.5). The supervisor is to be provided with a copy of the Council's Policy and a copy of the Medical Tribunal Reasons for Decision. Dr Jones is to be responsible for all costs associated with the supervision arrangement. Dr Jones must also ensure: (a)He meets with the supervisor on a fortnightly basis for at least one hour, the first meeting to occur within one week of being advised by the Council that his nominated supervisor has been approved. (b)At each meeting, he and the supervisor address the concerns identified in the Medical Tribunal Decision including case reviews, medical record reviews, pathology result reviews, clinical outcomes, patient follow up, communication skills, assertiveness skills, overall patient care and management, substance abuse, and appropriate prescribing practices. (c)At each meeting the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (d)The supervisor forwards to the Council the Supervision Report in a format prescribed or approved by the Council on a monthly basis or at a frequency determined by the Council. (e)The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance and health or if the supervisor relationship ceases. (f)In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. 6Within 21 days of the date of the receipt of this Decision, the practitioner is to provide the Medical Council of NSW the name and professional address of a registered medical practitioner who has agreed to act as his mentor. The mentor is to be independent of the practice within which the practitioner is working and must be approved by the Council. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Medical Council of NSW's Guidelines for Mentors (Policy PCH 10.1), however contact should include face-to-face contact for at least 2 hours on a monthly basis for at least the first 6 months. The practitioner is to: (a)provide the mentor with a copy of the Tribunal's Decision and these conditions prior to the mentoring arrangement commencing (b)ensure that mentoring sessions include discussion of issues highlighted in this Decision, personal and/or medical practice issues as they arise and professional development as a medical practitioner (including relevant CME activities) (c)authorise the mentor to report, in an approved format, to the Medical Council of NSW every three months about the fact of contact, and to inform the Council if there is any concern about his/her professional conduct (d)authorise the mentor to notify the Medical Council of NSW if there is any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate (e)participate in the mentor arrangements for an initial period of 18 months and thereafter for such period as the Medical Council of NSW may determine (f)authorise the mentor to notify the Medical Council of NSW when of the view that professional mentoring is no longer required (g)in the event that the approved mentor is no longer willing or able to continue as mentor, nominate another mentor for approval by the Medical Council of NSW within 21 days of the cessation of the original mentor relationship (h)be responsible for any costs associated with the mentoring process. 7To submit to an audit, at his work premises, of a random selection of his medical records by a person or persons nominated by the Medical Council of NSW, to assess his compliance with relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010 and the RACGP's Standards for General Practice (4th Edition), in particular Standard 1.7 'Content of Patient Health Records'. The audit is to occur within 4 months from the date of this Decision and subsequently at 6 monthly intervals, or as required by the Medical Council of NSW. The practitioner is to authorise the auditor/s to provide the Medical Council of NSW with a report on his/her/their findings. The practitioner is to meet all costs associated with the audit/s and any subsequent reports. 8To authorise and consent to any exchange of information between the Medical Council of NSW, Medicare Australia and the Pharmaceutical Services Branch where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
Health Related (Private) Conditions 1To attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating general practitioner. He is to advise the Medical Council of the name of his general practitioner within 2 weeks and is to authorise the treating general practitioner to inform the Medical Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status.
Review of conditions The Medical Council of NSW is the appropriate review body for the purpose of a review under Part 8 Div 8 of the Health Practitioner Regulation National Law (NSW). However, should the practitioner seek to change or remove any of the conditions imposed as a result of this Tribunal's orders when his principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the Health Practitioner Regulation National Law are to apply, so that a review of these conditions can be conducted by the Medical Board of Australia.
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: 03 August 2012
Health Care Complaints Commission
Dr Jones
(1938) 60 CLR 336
The practitioner was reprimanded in respect of both complaints, his registration made subject to strict practice and health conditions (including prohibition on prescribing Schedule 8 or 4D drugs, critical compliance conditions, Level 2 supervision, mentoring, random audits and information exchange), fined $10,000 in respect of the Second Complaint payable within 90 days, and ordered to pay the HCCC's costs. The conditions are reviewable by the Medical Council of NSW.