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[2011] NSWDC 99
District Court of NSW
2012-02-23
Kavanagh J, Ms J
Original judgment source is linked above.
DECISION 5The Health Care Complaints Commission ("the Complainant") brings before the Tribunal two complaints following consultation with the Medical Council of NSW ("the Council") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the Health Practitioner Regulation National Law (NSW) No 86a ("the Act") against Dr Katherine Nemeth ("the respondent") being a registered medical practitioner. 6The first complaint alleges, in the following terms, that the respondent: Has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that she has: (i)demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (ii)has contravened the Medical Practice Regulation 2003 now repealed; (iii)engaged in improper conduct relating to the practice of medicine. PARTICULARS Patient A 1.The Practitioner prescribed Oxycodone to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient A was on a methadone program; e.Without obtaining an authority to prescribe Oxycodone to Patient A from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 2.The Practitioner failed to keep proper medical records of Patient A in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including: i.the patient's medical history ii.the results of any physical examination of the patient; b.particulars of any clinical opinion reached by the registered medical practitioner; c.plan of treatment for the patient; d.a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient B 3.The practitioner prescribed Oxycodone to Patient B on the dates and in the quantities set out in the schedule attached and marked B: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; c.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient B was on a methadone program; d.Without obtaining an authority to prescribe Oxycodone to Patient B from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 4.The Practitioner failed to keep proper medical records of Patient B in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient C 5.The Practitioner prescribed Oxycodone to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; c.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient C was on a methadone program; d.Without obtaining an authority to prescribe Oxycodone to Patient C from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 6.The Practitioner failed to keep proper medical records of Patient C in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient D 7.The Practitioner prescribed Nitrazepam, Digesic, Endone, Oxycodone and Panadeine Forte to Patient D on the dates and in the quantities set out in the schedule attached and marked D: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; c.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient D was on a methadone program; d.Without obtaining an authority to prescribe Oxycodone and Endone to Patient D from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 8.The Practitioner failed to keep proper medical records of Patient D in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient E 9.The Practitioner prescribed Oxycodone to Patient E on the dates and in the quantities set out in the schedule attached and marked E: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.Without obtaining an authority to prescribe Oxycodone to Patient E from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 10.The Practitioner failed to keep proper medical records of Patient E in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. 11.The Practitioner contravened clause 34(1)(a) of the Poisons and Therapeutic Goods Regulation 2002 by recording a date, other than the date of issue, on a prescription issued to Patient E on 17 April 2008 for Oxycodone (Oxycontin) 80mg. Patient F 12.The Practitioner prescribed Oxycodone and Nitrazepam to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.Without obtaining an authority to prescribe Oxycodone to Patient F from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 13.The Practitioner failed to keep proper medical records of Patient F in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient G 14.The Practitioner prescribed Alprazolam, and Oxazepam to Patient G on the dates and in the quantities set out in the schedule attached and marked G: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 15.The Practitioner failed to keep proper medical records of Patient G in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including: i.the patient's medical history ii.the results of any physical examination of the patient; b.plan of treatment for the patient; c.a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient H 16.The Practitioner prescribed Morphine (MS Contin), Oxazepam and Diazepam to Patient H on the dates and in the quantities set out in the schedule attached and marked H: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Morphine (MS Contin) to Patient H from the NSW Health department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 17.The Practitioner failed to keep proper medical records of Patient H in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient I 18The Practitioner prescribed Oxazepam, Alprazolam and Diazepam to Patient I on the dates and in the quantities set out in the schedule attached and marked I: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 19.The Practitioner failed to keep proper medical records of Patient I in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient J 20.The Practitioner prescribed Bupenorphrine, Mersyndol Forte, Nitrazepam, Zolpidem (Stilnox) and Temazepam to Patient J on the dates and in the quantities set out in the schedule attached and marked J: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Bupenorphrine to Patient J from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 21.The Practitioner failed to keep proper medical records of Patient J in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Particulars of any medication prescribed for the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient K 22.The Practitioner prescribed Morphine (MS Contin) to Patient K on the dates and in the quantities set out in the schedule attached and marked K: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b. In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 23.The Practitioner failed to keep proper medical records of Patient K in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including the results of any physical examination of the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient L 24.The Practitioner prescribed Alprazolam to Patient L on the dates and in the quantities set out in the schedule attached and marked L: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 25.The Practitioner failed to keep proper medical records of Patient L in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Particulars of any medication prescribed for the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient M 26.The Practitioner prescribed Morphine (MS Contin) to Patient M on the dates and in the quantities set out in the schedule attached and marked M: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Morphine (MS Contin) to Patient M from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 27.The Practitioner failed to keep proper medical records of Patient M in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient N 28.The Practitioner prescribed Morphine (MS Contin) to Patient N on the dates and in the quantities set out in the schedule attached and marked N: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 29.The Practitioner failed to keep proper medical records of Patient N in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including: i.the patient's medical history ii.the results of any physical examination of the patient iii.the results of any tests performed on the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient O 30.The Practitioner prescribed Oxycodone and Panadeine Forte to patient O on the dates and in the quantities set out in the schedule attached and marked O: a.In circumstances where the practitioner had been notified that O was a known 'doctor shopper'; b.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Oxycodone to Patient O from the NSW Health department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. Patient P 31.The Practitioner prescribed Oxycodone, Diazepam, Buprenorphine, Phentermine (Duromine), Morphine sulphate injection, Oxazepam, Nitrazepam, Codeine Linctus, and Pethidine to patient P on the dates and in the quantities set out in the schedule attached and marked P: a.In circumstances where P was also being prescribed drugs of addiction by another practitioner at the same practice; b.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 32.The Practitioner failed to keep proper medical records of Patient P in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient Q 33.The Practitioner prescribed Oxycodone and Diazepam to Patient Q on the dates and in the quantities set out in the schedule attached and marked Q: a.in circumstances where the practitioner failed to adequately investigate whether Patient Q may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 34.The Practitioner failed to keep proper medical records of Patient Q in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient R 35.The Practitioner prescribed Oxycodone and Diazepam to Patient R on the dates and in the quantities set out in the schedule attached and marked R: a.in circumstances where the practitioner failed to adequately investigate whether Patient R may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 36.The Practitioner failed to keep proper medical records of Patient R in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient S 37.The Practitioner prescribed Tramadol, Oxycodone, Diazepam and Temazepam to Patient S on the dates and in the quantities set out in the schedule attached and marked S: a.in circumstances where the practitioner failed to adequately investigate whether Patient S may have had a history of past or current substance abuse; and b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. Patient T 38.The Practitioner prescribed Oxycodone to Patient T on the dates and in the quantities set out in the schedule attached and marked T: a.in circumstances where the practitioner failed to adequately investigate whether Patient T may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 39.The Practitioner failed to keep proper medical records of Patient T in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient U 40.The Practitioner prescribed Morphine (MS Contin), Oxazepam and Diazepam to Patient U on the dates and in the quantities set out in the schedule attached and marked U: a.in circumstances where the practitioner failed to adequately investigate whether Patient U may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 41.The Practitioner failed to keep proper medical records of Patient U in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient V 42.The Practitioner prescribed Oxycodone, Diazepam and Panadeine Forte to Patient V on the dates and in the quantities set out in the schedule attached and marked V: a.in circumstances where the practitioner failed to adequately investigate whether Patient V may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 43.The Practitioner failed to keep proper medical records of Patient V in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient W 44.The Practitioner prescribed Codeine Phosphate and Alprazolam to Patient W on the dates and in the quantities set out in the schedule attached and marked W: a.in circumstances where the practitioner failed to adequately investigate whether Patient W may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 45.The Practitioner failed to keep proper medical records of Patient W in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient X 46.The Practitioner prescribed Morphine (MS Contin) to Patient X on the dates and in the quantities set out in the schedule attached and marked X: a.in circumstances where the practitioner failed to adequately investigate whether Patient X may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 47.The Practitioner failed to keep proper medical records of Patient X in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient Y 48.The Practitioner prescribed Temazepam, Endone and Nitrazepam to Patient Y on the dates and in the quantities set out in the schedule attached and marked Y: a.in circumstances where the practitioner failed to adequately investigate whether Patient Y may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 49The Practitioner failed to keep proper medical records of Patient Y in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient Z 50.The Practitioner prescribed Diazepam, Panadiene Forte and Temazepam to Patient Z on the dates and in the quantities set out in the schedule attached and marked Z: a.in circumstances where the practitioner failed to adequately investigate whether Patient Z may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 51.The Practitioner failed to keep proper medical records of Patient Z in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient AA 52.The Practitioner prescribed Diazepam, Temazepam and Panadeine Forte to Patient AA on the dates and in the quantities set out in the schedule attached and marked AA: a.in circumstances where the practitioner failed to adequately investigate whether Patient AA may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 53.The Practitioner failed to keep proper medical records of Patient AA in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient AB 54.The Practitioner prescribed Temazepam and Oxazepam to Patient AB on the dates and in the quantities set out in the schedule attached and marked AB: a.in circumstances where the practitioner failed to adequately investigate whether Patient AB may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 55The Practitioner failed to keep proper medical records of Patient AB in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. 7The second complaint alleges, in the following terms, that the respondent: Has been guilty of professional misconduct within the meaning of section 139E of the National Law in that she has: (i)Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or (ii)Has 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 her registration. 8The particulars are slightly at variance with each patient so it is necessary to recite them. PARTICULARS Patient A 56.The Practitioner prescribed Oxycodone to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient A was on a methadone program; e.Without obtaining an authority to prescribe Oxycodone to Patient A from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 57.The Practitioner failed to keep proper medical records of Patient A in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including: i.the patient's medical history ii.the results of any physical examination of the patient; b.particulars of any clinical opinion reached by the registered medical practitioner; c.plan of treatment for the patient; d.a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient B 58.The practitioner prescribed Oxycodone to Patient B on the dates and in the quantities set out in the schedule attached and marked B: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; c.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient B was on a methadone program; d.Without obtaining an authority to prescribe Oxycodone to Patient B from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 59.The Practitioner failed to keep proper medical records of Patient B in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient C 60.The Practitioner prescribed Oxycodone to Patient C on the dates and in the quantities set out in the schedule attached and marked C: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; c.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient C was on a methadone program; d.Without obtaining an authority to prescribe Oxycodone to Patient C from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 61.The Practitioner failed to keep proper medical records of Patient C in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient D 62.The Practitioner prescribed Nitrazepam, Digesic, Endone, Oxycodone and Panadeine Forte to Patient D on the dates and in the quantities set out in the schedule attached and marked D: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; c.When such prescribing was contraindicated as it was known or should have been known to the practitioner that Patient D was on a methadone program; d.Without obtaining an authority to prescribe Oxycodone and Endone to Patient D from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 63.The Practitioner failed to keep proper medical records of Patient D in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient E 64.The Practitioner prescribed Oxycodone to Patient E on the dates and in the quantities set out in the schedule attached and marked E: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.Without obtaining an authority to prescribe Oxycodone to Patient E from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 65.The Practitioner failed to keep proper medical records of Patient E in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. 66.The Practitioner contravened clause 34(1)(a) of the Poisons and Therapeutic Goods Regulation 2002 by recording a date, other than the date of issue, on a prescription issued to Patient E on 17 April 2008 for Oxycodone (Oxycontin) 80mg. Patient F 67.The Practitioner prescribed Oxycodone and Nitrazepam to Patient F on the dates and in the quantities set out in the schedule attached and marked F: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.Without obtaining an authority to prescribe Oxycodone to Patient F from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 68.The Practitioner failed to keep proper medical records of Patient F in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient G 69.The Practitioner prescribed Alprazolam, and Oxazepam to Patient G on the dates and in the quantities set out in the schedule attached and marked G: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 70.The Practitioner failed to keep proper medical records of Patient G in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including: i.the patient's medical history ii.the results of any physical examination of the patient; b.plan of treatment for the patient; c.a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient H 71.The Practitioner prescribed Morphine (MS Contin), Oxazepam and Diazepam to Patient H on the dates and in the quantities set out in the schedule attached and marked H: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Morphine (MS Contin) to Patient H from the NSW Health department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 72.The Practitioner failed to keep proper medical records of Patient H in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient I 73The Practitioner prescribed Oxazepam, Alprazolam and Diazepam to Patient I on the dates and in the quantities set out in the schedule attached and marked I: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 74.The Practitioner failed to keep proper medical records of Patient I in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient J 75.The Practitioner prescribed Bupenorphrine, Mersyndol Forte, Nitrazepam, Zolpidem (Stilnox) and Temazepam to Patient J on the dates and in the quantities set out in the schedule attached and marked J: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Bupenorphrine to Patient J from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 76.The Practitioner failed to keep proper medical records of Patient J in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Particulars of any medication prescribed for the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient K 77.The Practitioner prescribed Morphine (MS Contin) to Patient K on the dates and in the quantities set out in the schedule attached and marked K: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b. In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 78.The Practitioner failed to keep proper medical records of Patient K in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including the results of any physical examination of the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient L 79.The Practitioner prescribed Alprazolam to Patient L on the dates and in the quantities set out in the schedule attached and marked L: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 80.The Practitioner failed to keep proper medical records of Patient L in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Particulars of any medication prescribed for the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient M 81.The Practitioner prescribed Morphine (MS Contin) to Patient M on the dates and in the quantities set out in the schedule attached and marked M: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Morphine (MS Contin) to Patient M from the NSW Health Department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. 82.The Practitioner failed to keep proper medical records of Patient M in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient N 83.The Practitioner prescribed Morphine (MS Contin) to Patient N on the dates and in the quantities set out in the schedule attached and marked N: a.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; b.In quantities in excess of recognised therapeutic standards of what is medically appropriate; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 84.The Practitioner failed to keep proper medical records of Patient N in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record: a.Information known to the practitioner relevant to her diagnosis and treatment including: i.the patient's medical history ii.the results of any physical examination of the patient iii.the results of any tests performed on the patient; b.A level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient O 85.The Practitioner prescribed Oxycodone and Panadeine Forte to patient O on the dates and in the quantities set out in the schedule attached and marked O: a.In circumstances where the practitioner had been notified that O was a known 'doctor shopper'; b.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; d.Without obtaining an authority to prescribe Oxycodone to Patient O from the NSW Health department, contrary to section 28 of the Poisons and Therapeutic Goods Act 1966. Patient P 86.The Practitioner prescribed Oxycodone, Diazepam, Buprenorphine, Phentermine (Duromine), Morphine sulphate injection, Oxazepam, Nitrazepam, Codeine Linctus, and Pethidine to patient P on the dates and in the quantities set out in the schedule attached and marked P: a.In circumstances where P was also being prescribed drugs of addiction by another practitioner at the same practice; b.Without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.When the practitioner knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. 87.The Practitioner failed to keep proper medical records of Patient P in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient Q 88.The Practitioner prescribed Oxycodone and Diazepam to Patient Q on the dates and in the quantities set out in the schedule attached and marked Q: a.in circumstances where the practitioner failed to adequately investigate whether Patient Q may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 89.The Practitioner failed to keep proper medical records of Patient Q in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient R 90.The Practitioner prescribed Oxycodone and Diazepam to Patient R on the dates and in the quantities set out in the schedule attached and marked R: a.in circumstances where the practitioner failed to adequately investigate whether Patient R may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 91.The Practitioner failed to keep proper medical records of Patient R in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient S 92.The Practitioner prescribed Tramadol, Oxycodone, Diazepam and Temazepam to Patient S on the dates and in the quantities set out in the schedule attached and marked S: a.in circumstances where the practitioner failed to adequately investigate whether Patient S may have had a history of past or current substance abuse; and b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. Patient T 93.The Practitioner prescribed Oxycodone to Patient T on the dates and in the quantities set out in the schedule attached and marked T: a.in circumstances where the practitioner failed to adequately investigate whether Patient T may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 94.The Practitioner failed to keep proper medical records of Patient T in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient U 95.The Practitioner prescribed Morphine (MS Contin), Oxazepam and Diazepam to Patient U on the dates and in the quantities set out in the schedule attached and marked U: a.in circumstances where the practitioner failed to adequately investigate whether Patient U may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 96.The Practitioner failed to keep proper medical records of Patient U in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient V 97.The Practitioner prescribed Oxycodone, Diazepam and Panadeine Forte to Patient V on the dates and in the quantities set out in the schedule attached and marked V: a.in circumstances where the practitioner failed to adequately investigate whether Patient V may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 98.The Practitioner failed to keep proper medical records of Patient V in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient W 99.The Practitioner prescribed Codeine Phosphate and Alprazolam to Patient W on the dates and in the quantities set out in the schedule attached and marked W: a.in circumstances where the practitioner failed to adequately investigate whether Patient W may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 100.The Practitioner failed to keep proper medical records of Patient W in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient X 101.The Practitioner prescribed Morphine (MS Contin) to Patient X on the dates and in the quantities set out in the schedule attached and marked X: a.in circumstances where the practitioner failed to adequately investigate whether Patient X may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 102.The Practitioner failed to keep proper medical records of Patient X in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient Y 103.The Practitioner prescribed Temazepam, Endone and Nitrazepam to Patient Y on the dates and in the quantities set out in the schedule attached and marked Y: a.in circumstances where the practitioner failed to adequately investigate whether Patient Y may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 104.The Practitioner failed to keep proper medical records of Patient Y in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient Z 105.The Practitioner prescribed Diazepam, Panadiene Forte and Temazepam to Patient Z on the dates and in the quantities set out in the schedule attached and marked Z: a.in circumstances where the practitioner failed to adequately investigate whether Patient Z may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 106.The Practitioner failed to keep proper medical records of Patient Z in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient AA 107.The Practitioner prescribed Diazepam, Temazepam and Panadeine Forte to Patient AA on the dates and in the quantities set out in the schedule attached and marked AA: a.in circumstances where the practitioner failed to adequately investigate whether Patient AA may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; c.where the practitioner ought to have known drugs were being or were likely to be abused. 108.The Practitioner failed to keep proper medical records of Patient AA in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned. Patient AB 109.The Practitioner prescribed Temazepam and Oxazepam to Patient AB on the dates and in the quantities set out in the schedule attached and marked AB: a.in circumstances where the practitioner failed to adequately investigate whether Patient AB may have had a history of past or current substance abuse; b.without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions. 110.The Practitioner failed to keep proper medical records of Patient AB in accordance with the requirements of Schedule 2 of the Medical Practice Regulation 2003, in that she failed to record a level of detail appropriate to the patient's case and/or to the medical practice concerned.
Consideration - Unsatisfactory Professional Conduct 9Dr Katherine Nemeth ('the doctor"/"the practitioner") admits the particulars of the complaint and that it amounts to unsatisfactory professional conduct. The admission was not made until the commencement of the hearing. However, the doctor also sought to explain the impugned conduct in context, while acknowledging it was a breach of proper and ethical medical practice in performance of the application of her judgement as a medical practitioner. 10Section 139B of the Act relevantly provides that "unsatisfactory professional conduct" means: (a)Any conduct that demonstrates that 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. (b)Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (m) improper or unethical conduct relating to the practice of medicine. 11Dr Nemeth therefore concedes she is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s139B and 139E of the Act in that she exercised judgement significantly below the standard reasonably expected of a practitioner of an equivalent level or experience in her prescribing of Schedule 8 and 4D drugs to persons addicted. 12The particulars of the complaint concern the doctor's practice of prescribing certain Schedule 8 and Schedule 4D drugs to 28 patients between 2006 and 2008. Also relied upon is the doctor's failure to keep adequate medical records. 13The doctor relinquished her authority to prescribe Schedule 8 and Schedule 4D drugs on 27 August 2008. She asserts she has no intention to seek to amend that agreement at this stage. Therefore, while the doctor has continued to practice medicine as a General Practitioner she does so without the right to prescribe scheduled drugs for the last 3 ½ years. She has found no difficulty with this agreement as the surgeries in which she works always have a doctor available to prescribe if necessary. 14Dr Nemeth, however, denies that the conduct related to her prescription practices, though admitted, amounts to professional misconduct. The Facts 15The doctor completed her MBBS in 1973 and in 1974 commenced working in various major teaching hospitals. She became a fellow of the Royal Australasian College of General Practitioners in 1981. She commenced sole general practice in 1979 when she purchased an established practice at Lane Cove. In 1981 she continued the sole general practice when she purchased a practice in Gordon. Because of personal difficulties and financial difficulties she closed the practice in Gordon. 16She then commenced working in medical centres, firstly during the evenings and on weekends with occasional week day work. 17In 1994 she moved to a sole general practice in Revesby. The evidence is not clear as to her work history between 1994 - 1997. In that period she experienced some serious financial difficulties associated with a business venture. Further, she was in a difficult personal relationship. However, in 1997 she had begun working in a general practice at Penrith, working a few days a week between 7am to 10 pm. She opines she would see over 100 patients per day and was often working 75 - 80 hours per week. 18The Health Insurance Commission challenged her servicing so many patients. She acknowledged one of her motivations was "an attempt to pay off my substantial debts". She was then called before the Professional Services Review. An examination of her records exposed discrepancies. 19During this period, a fellow GP at the centre reported his concern as to the doctor's fitness to practice. This resulted in the Medical Council requiring a psychiatric assessment of the practitioner. She was referred to the Medical Council who sent her for assessment by Dr Robert Fisher, a Consultant Psychiatrist. She sought a second opinion which the Medical Council allowed and it was given by Dr Sheila Metcalf, also a Psychiatrist. 20The doctor, following those assessments, was placed in the Impaired Doctors Programme in 1999. She ceased all work as a Medical Practitioner for 6 months. 21In late 2003, the PSR handed down its decision regarding Dr Nemeth. She was fined and had a Medicare restriction placed upon her, which restriction was subsequently lifted. 22She returned to work from the Impaired Doctors Programme in late July 2000, working 10 hours a week and gradually increasing her hours until in 2004 she was released from the programme. 23However, from mid 2002 she began relief work at a few practices, including one general practice at Bundeena. Unfortunately a husband and wife team of medical practitioners then left the practice. Dr Nemeth had to assume, by default, responsibility for the practice. She continued to feel some stress in assuming this responsibility and at times was unable to open the surgery. In this period, she contracted Lyme disease. Her symptoms included forgetfulness, impaired memory, fatigue and muscle weakness. 24There were four complaints made about the doctor's practice at Bundeena. They were minor, but the totality of complaints led to another interview with the Medical Council. We concur with the view the complaints made, although minor, suggest that the doctor was not coping with the stress and demands which were being made on her as a sole practitioner at Bundeena. 25In September 2005, the Pharmaceutical Services Branch (PSB) cautioned Doctor Nemeth about the treatment of a patient, Mr ..., in relation to prescribing Schedule 8 drugs. By letter dated 5 December 2005, she was provided with information outlining appropriate prescribing practices and she was forwarded the "Recognising and Treating Drug Dependent Persons for Medical Practitioners" publication by the PSB. There were two telephone conversations between the doctor and the PSB as to their concerns. Dr Nemeth confirmed she had received the letter from the PSB which expressly warned her that improper prescribing of the Scheduled drugs could amount to a finding in relation to her practice of medicine of professional misconduct. 26She ceased working at Bundeena in mid 2006 and did casual work as a general practitioner in practices at Campbelltown and Narellan. 27In February 2007, the doctor was offered a contractual position at the Regency Medical Centre (RMC) at Parramatta. She initially worked 45 hours per week. The doctor has continued to work at this Centre since that time but is working different hours/sessions. She currently works one session per week on Monday afternoon. The RMC has 6 doctors. Dr Nemeth usually works the evening sessions. At that practice, patients can walk in without a prior appointment. The patient can ask to see a particular doctor or would wait to see the first GP available. Eleven of the 28 patients addressed in this complaint were treated by Dr Nemeth at the Parramatta practice in the period. 28In about January 2007, the doctor was asked to do a locum at Ozemed Medical Centre in Penrith. Following this initial locum, she was asked to work at the practice until a new GP was found and, if the full-time doctor did not return from leave, to continue. The medical records at that practice of the doctor's treatment of patients were either non-existent or of very poor quality. 29By about January 2008, the doctor decided that she would increase her hours at Penrith and reduce her hours at RMC. She determined that the Penrith practice would be her principal place of work. By January 2008, the doctor had been involved with the Penrith practice for 12 months. She knew both the nature of the practice and the general type of medical care required. Between 2007 - 2008 the doctor worked up to 70 hours per week. She saw 200 - 300 patients per week. 30On 27 August 2008, PSB officers interviewed the doctor about her prescribing practices, including prescribing without an authority and prescribing in excess of the normal dosage. The complaints of the initial interview concerned her treatment of 44 patients attending the RMC and Penrith practices. It is necessary to note the HCCC have only proceeded with evidence related to the treatment of 28 patients. 31The PBS's inquiries identified four groups of patients: Group 1: Patients on opiate treatment programs for whom Dr Nemeth prescribed high doses of Oxycodone or Morphine - Patients A, B, C, Q, R and S; Group 2:Patients identified as previously on an opiate treatment program for whom Dr Nemeth prescribe high doses of Oxycodone or Morphine - Patients T, U, V and W; Group 3:Patients identified as drug dependent persons for whom Dr Nemeth prescribed high doses of Oxycodone or Morphine - Patients E, F, K, M, N, O, X and Y; and Group 4:Patients prescribed long term and/or high doses of benzodiazepines, some of whom were on or had been previously on an opiate treatment program - Patients D, G, H, I, J, L, P, U, Z, AA and AB. 32The PSB recorded its interview with the doctor. It is contended the interview revealed Dr Nemeth: demonstrated that she did not understand the need to hold an authority to prescribe Schedule 8 drugs to drug dependent persons prior to prescribing; demonstrated that she did not fully understand when she could prescribe Schedule 8 drugs long term; did not turn her mind to asking questions of the patients to determine for herself whether she could prescribe Schedule 8 drugs lawfully; made no inquiries of the patients' drug taking history; was unaware of obvious drug seeking behaviours; failed to check the veracity of correspondence from pain clinics, for example, long time drug use; and conceded she had a problem with prescribing Schedule 8 drugs. 33In the interview with the PSB, the doctor relied upon the fact that she suffered from Lyme disease to explain her distraction from following the proper protocols for prescribing Schedule 8 drugs. We are satisfied she was aware, following the advice she received from the PSB in 2005, of the proper protocols. 34The doctor has made admissions in relation to the particulars concerning these patients. The clinical records and notes (which were computerised) are sparse on the treatment of these 11 patients. However, we are satisfied the notes reveal the doctor was aware of the addictive behaviour of such patients and aware of the harmful effects of the inappropriate use of addictive medication. The records of January 2008 reveal she refused to prescribe Xanax to a patient. A further record reveals she notated that she spoke to another patient about 'doctor shopping'. In regard to the latter patient she also continued to prescribe large quantities of Oxycodone. The patient had followed her from Campbelltown practice. Other patients also followed her from other practices. That should have made her doubly cautious. 35The evidence satisfies Dr Nemeth knew she was required to seek an authority for prescribing Schedule 8 and 4D drugs for a period of longer than two months. However, in hearing the doctor's evidence and explanations as to her circumstance, it became clear the doctor wrongly assumed, at that time in the impugned conduct in her practice, that it was best to seek a direction from a pain clinic before she put a treatment plan in place. In the circumstances, she continued to prescribe Schedule 8 and 4D drugs, calling them "maintenance" while she awaited the expert pain clinic advice. When she suspected a patient needed such medication she appears always to have referred them to a pain clinic. In the circumstances, while dealing with the usual long delay before receiving the report back from a pain clinic, she often prescribed those scheduled drugs sought by the patient without the necessary permit "to maintain" the patient pending a full analysis that she had sought from a specialist of the care needed. 36The doctor in evidence agreed she was "a sucker for people with problems" and, on reflection, conceded she had been "conned badly by these people". She explained she had been "tired and didn't have the strength and that she had dropped her guard and got sucked in". Her view is that she was "over compassionate". She agreed her judgement and concern for her professional reputation should have been triggered when addicts followed her from one practice to the other. 37In giving her evidence the doctor revealed a significant emotional reaction when questioned and cross-examined as to the care she provided to these patients. That reaction was explained by her repeated explanation "I am so ashamed". However, the doctor therein revealed a separate vulnerability. She clearly felt a particular sympathy for patients with addictions and dealt with them in a much more interventionist manner than patients who presented with simple physical problems. There has been no expressed concern by the HCCC as to how she properly treated the usual general practice patients. However, she continually followed her practice of referrals to pain clinics when she recognised and diagnosed addictive behaviour believing that was the proper treatment for all addicted patients. She reiterated her view a Treatment Plan had to be prepared under the guidance of experts for such patients. She continually made reference to relieving their "pain". 38It is difficult to advise a doctor that more head than heart is necessary in the long term care of such needy patients. It is a question of the proper ethical treatment, as well as respect for the law and her professional obligations. Part of the essential skill needed of a good general practitioner is in the application of one's medical skill and knowledge. That requires an emphasis on the use of a well honed clinical judgement. Dr Nemeth revealed in this conduct a lack of the necessary judgement, particularly in relation to her treatment of drug addicted patients. 39Dr Clark, a treating Psychiatrist, saw her on and off after she went through the Impaired Doctors Programme and generally when she suffered severe bouts of depression. He expressed strongly the view that, having given up her prescribing rights to Schedule 8 and 4D drugs, the doctor is now free of the conflict her emotions played in her treatment of such patients and that she is, in her present state of mind, a good doctor. In cross-examination, Dr Clark said: Q.So your observations in here now over a period of some eight years or so, would you agree that aspect of her personality is that she has great difficulties saying no if she believes that she is the person of last resort or the person who can assist, for example, a patient or the performance of a task? A.It depends on the situation. She obviously did behave like that when she was prescribing but there is no evidence of it recurring. There is no evidence of it occurring in such a way that in - I think her way of thinking is actually very valuable. She is a perfectionist and she is emphatic to that sort of drive, coupled with her - she has got good intelligence as well. Those three things I think make a good doctor. . . . Q.Can I ask you this: are you saying in answer to that question that a combination of her particular stressors, together with this personality trait of perfectionism, that it is the combination of those circumstances that has caused her to have conflict with what you have described here as the circumstances of her practice? A.It is also her empathy, which is a key - could become misguided in the past. She is much more aware of this and has in fact given up that form of prescribing and seems much happier in her present practice. . . . 40When questioned by the Tribunal: Q. One of the things we have noticed is that Dr Nemeth has worked in numerous practices? A. Yes. Q. Particularly, I think I can say the last ten years, has worked in a number of different practises concurrently. Is that indicative, do you see that as indicative as any sort of personality trait or ... do you feel that it is one of the things Dr Nemeth uses to allow her to cope with the stresses where she doesn't allow herself to be become too involved in practices? A. I think she does get involved, that is the reason for the trouble. You can't say that. At the moment she is aware she's got to earn money. . . . Q. You have seen no evidence that personality trait may be part of the reason why she moves between practices? A. No, no, I think it is money. . . . Q. So, in a reliving experience you can expect her to react with stress? A. She is an intelligent woman and certainly gained a lot through the years in working things out. I hesitate to say but the antidepressants do work. It is very much in the literature antidepressants are not as good as a psychologist but there is a lot of evidence these days that your emotional centre actually gets more consolidated, actually gets bigger. I know because it is rhetoric, so we shouldn't decry the fact she has been on medication and stays on medication. I think it is an excellent result for that particular medication. She has not slipped into major depression. She has had episodes but not slipped into it. 41Dr M Kertesz, the peer doctor, opined with an in depth analysis of the treatment given by Dr Nemeth to each of the 28 patients. He has provided a detailed and comprehensive report of the patients who attended both the Parramatta and Penrith clinics and based his opinion on a review of the clinical records (those provided by the doctor to the PSB). Having set out the history and the appropriate standards to be applied in detail, Dr Kertesz reviewed the care offered to each named patient. With respect to patients A, C, D, E, F, H, I, K, M, N, O, P, Q, R, S, T, U, V, X, Z, AA and AB he expressed the opinion that the conduct was a departure from standards reasonably expected of a doctor of equivalent level of training or experience. He said that the departure was significant and invited strong criticism. 42When Dr Kertesz opined there was a departure from the expected standards for most of the identified patients, he did not invite strong criticism of Patients B, J (in part), L and W. He was not critical of the treatment of patients G, J (in part) and Y. 43We are satisfied the admission as to unsatisfactory professional conduct was, in the circumstance, proper. We are satisfied as to the particulars in all cases except those exempted by Dr Kertesz, namely, patients G and Y. We accept the questionable treatment given to patients B, J, L and W should be included in the decision there was unsatisfactory professional conduct, both in relation to the practitioner's prescribing practices and in her failure to keep proper records. 44Given that General Practitioners in the field of medicine are regularly asked to prescribe Schedule 8 and 4D drugs to manage patients, Dr Kertesz opined that prescribing such medications was not the sole or exclusive domain of pain management consultants or physicians with specific training and interest or GPs trained in prescribing pharmacotherapy. In the doctor's view, if a GP takes the responsibility for managing and treating a patient, it is incumbent on the GP to follow appropriate standards. He concluded that, overall, Dr Nemeth's conduct fell significantly below the standard expected of a doctor of her level of training and experience. 45Aside from the prescription practices of the doctor, especially related to her care of drug addicted patients, there is a second limb to the complaint. 46Dr Nemeth's medical records speak for themselves. They clearly fell short of what meets a professional standard. This has created serious difficulty in understanding the extent of the consultations and treatment provided to the particularised patients. However, the records do establish that for many of the identified patients, mostly drug addicted patients, she was addressing a range of problems with care plans and mental care plans through referrals to specialists, hospitals and clinics. While we accept she was not a practitioner who was merely seeking to service patients' drug habits, her misplaced compassion for her patients resulted in her failing to perform to the requisite professional standard. We do not accept, given her prior warning, that any of these behaviours can be explained away by monetary needs, ill health or personal problems. 47In all we are satisfied the circumstances establish her admission as to unsatisfactory professional conduct were proper. We find the conduct, both related to her prescribing practice and record keeping, reflect in a finding of unsatisfactory professional conduct.
Professional Misconduct 48The central issue to be determined is whether or not all the conduct admitted in respect of Complaint 1, when viewed separately as independent breaches of the appropriate standards or when taken together, amount to the more serious finding of professional misconduct. The question then becomes, if the conduct is perceived as a most basic breach of the standards such as to amount to professional misconduct, whether the severity of such would justify the doctor's suspension or cancellation of registration. 49In Pillai v Messiter (No. 2) (1989) 16 NSWLR 197, Kirby P described the test for professional misconduct as follows. He said (at 200): Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner. Further, (at 201), Kirby P said: The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed. 50In Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99 at [18] and [19], the Tribunal said: [18]The issue is whether, when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration: s 37 Medical Practice Act 1992, s 139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct based on the outcome. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public: s 2A (3) of the Act. [19]The "seriousness" of unsatisfactory professional conduct depends on the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. "Misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Preistley JA at [104]. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at [200]. 51As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner. 52The Tribunal accepts the doctor in evidence was a witness of truth. She gave her evidence in an open, if emotional, manner. It has been submitted on behalf of the complainant that she was a deceptive and dishonest person who deceived the PSB investigators as well as the Tribunal (eg. the PSB investigator was not told she had been suffering from the effects of Lyme Disease throughout the subject period). She however has explained the effect the disease had on her and Dr Clark expressed the view it was, at one time, a debilitating disease for her. We accept she suffered from the effects of Lyme Disease and was being treated for it over a number of years. Dr Schloeffel, who saw her on numerous occasions starting in September 2005, confirmed that she was suffering the effects throughout the period in question and considered she suffered from a serious and, for her, debilitating condition. 53However, we do not accept we can distinguish these matters from that considered in Spicer. We are satisfied Dr Nemeth pursued her own misguided course of treatment of drug addicted patients, shutting her eyes to reality. 54We accept, while she was "shocked and horrified" in retrospect, it is the conduct itself that is of concern. While there was frustration expressed by the doctor as to the lack of support services for any addicted persons in the districts in which she conducted her practice, Dr Nemeth has conceded that during the subject period she was, in her treatment of these patients all of whom were drug addicted, both foolish and unprofessional but, it is contended, she was always treating genuine medical problems and was always motivated by her care and compassion for their "pain". 55While we also accept the evidence that the doctor's professional preference was to refer addicted patients on to specialists, hospitals and other health care providers (eg pain clinics at the Nepean and Westmead Hospitals), the doctor ignored the legal ambit of her authority to treat such patients when she continued to prescribe drugs of addiction to them without legal authority. While the records were very limited they revealed, however, numerous references to discussions and planning about drug intake and compliance with her patients. The records also disclosed discussions or plans to decrease patient's intake, to limit scripts, to recommend and make appointments for patients to attend a pain clinic or to exclude the patient if there was non-compliance. 56The doctor, from her oral evidence, supported by the above referrals and plans, in fact appears to have given extra attention to drug addicted patients who she always referred to as patients in "great pain". All these breaches we accept were committed in the context of her being not in good health and at a time when she was under personal stress. We also accept she did not have, in her past practices, great experience as a general practitioner with drug dependent patients (in the relevant period). 57Nonetheless, we do not accept any of these circumstances abrogate her from her responsibility to conduct her practice under professional guidelines. 58The Tribunal indicated that it would be assisted by seeing a sample of current records and examples were produced relating to her services at the Blue Cross Medical Centre on the 8 February 2012. She was subject to critical cross-examination on these documents. The Health Practitioner Regulation National Law (NSW) No 86a and Regulations sets out an appropriately demanding standard for the contents of a medical record. The Tribunal accepts that meeting the standard is a constant challenge for all practitioners in a busy practice. On examination, the respondent's current records are not perfect. However, the records are of an entirely different nature to the ones under consideration in 2007-2008. The present records are fully maintained on computer; they can be read; the histories, symptoms and treatment are readily understood. We are satisfied another practitioner picking up the records would have a reasonable understanding of what occurred in the relevant consultations. There are still shortcomings, but improvements have been made. Her computer skills clearly still need attention. 59We take all the above circumstances into account but we find Dr Nemeth breached her duty of care in the relevant period to such an extent that the conduct should be perceived as professional misconduct. We so find. 60As to penalty, Dr Clark and Dr Schloeffel have opined the doctor is now much more physically and mentally stable than she was during the relevant period. Dr Clark has specifically opined that she is fit for practice. He concluded the way she conducts her medical practice is "more peaceful"; that she had "found her metier" with a "positive way of looking ahead" and "avoiding different aspects that got her into trouble in the past". Significantly he opined that her way of thinking is "very valuable" and noted her "empathic" nature and that her "intelligence" makes her "a good doctor". 61As was held in NSW Bar Association v Meakes [2006] NSWCA 340 at [113] - [114], in the exercise of the protective jurisdiction: [113]The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. [114]That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. 62Dr Nemeth has relinquished her prescribing rights for Schedule 8 and 4D drugs and there has been no attempt by the HCCC to in any way suspend or restrict her practice. Nor has there been attempts by any other authority. Without having rights to prescribe Schedule 8 and Schedule 4D medications the doctor has been able to competently continue her practice and provide a service to the public since the last recorded breach some three and a half years ago. 63Dr Ashford, a doctor in whose surgery she works, opines Dr Nemeth works "extremely hard and is a very competent Doctor". 64However, the Tribunal is of the view the doctor should have some further restrictions placed upon her. In describing the nature of her present practice, she revealed she is often left alone at the practices doing the evening shift. It is common knowledge the drug addicted patients often seek access to drugs in this period. Further, the nature of her practice reveals that she continues to be required to treat a large number of patients. She travels to work over many hours. While we accept Dr Clark's assessment she is a good doctor with much empathy for her patients, we are of the view the evidence establishes she needs to settle into a routine general practice now and, along with the restriction as to prescribing Scheduled drugs, she would be best to work at a controlled pace. 65The doctor revealed she is currently doing sessional work at: Blue Cross Medical Centre, Kingsgrove; Regency Medical Centre, Parramatta; Kingsway Medical and Dental Centre, Miranda; and Hurstville Town Medical Centre, Hurstville. 66Accordingly, it is our recommendation the practitioner change the nature of her practice. The Medical Council of NSW (as the appropriate review body) must approve the changes as follows: Dr Nemeth in her practice of medicine is to be restricted to: Seeing 30 patients per day within the hours of 8am and 6pm. Work in a group practice or practices approved by the Medical Council. Is to practice medicine with another practitioner always on site. There shall be an audit of her medical records at a time to be fixed by the Medical Council of NSW within the next six months. The practitioner is to be the subject of supervision in accordance with "Level 3" Supervision under the guidelines of the Medical Council of NSW. The practitioner is to not prescribe / possess / supply / administer / handle / dispense any drug of addiction (Schedule 8 drugs) / any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative). Any future change in Dr Nemeth's Schedule 8 and Schedule 4D authority must be in accordance with the Medical Council of NSW'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. The practitioner is to nominate a supervisor within the next 21 days, to be approved by the Medical Council of NSW, to monitor and review her clinical practice and compliance with (Practice) Conditions in accordance with Level 3 Supervision as contained in the Medical Council of NSW's Guidelines for Supervision (Policy PCH 7.2). The supervisor is to be provided with a copy of the Medical Council of NSW's Policy PCH 7.2 and a copy of the any reports the Medical Council of NSW deems appropriate. To be responsible for all costs associated with the supervision arrangement. To ensure that: (i)She and the supervisor meet on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Medical Council of NSW that her nominated supervisor has been approved. (ii)At each meeting they address medical record reviews, workload, clinical outcomes, patient follow up, boundary issues, communication skills, overall patient care and management, substance abuse and appropriate prescribing practices. (iii)At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Medical Council of NSW. (iv)The supervisor forwards to the Medical Council of NSW, initially on quarterly basis, a Supervision Report in a format prescribed or approved by the Medical Council of NSW. (v)The supervisor informs the Medical Council of NSW immediately if there is any concern in relation to his/her compliance with the supervision requirements and compliance with other conditions of registration, or if the supervisor relationship ceases. The practitioner authorise the supervisor to provide such information to the Medical Council of NSW. (vi)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 Medical Council of NSW within 21 days of the cessation of the original supervisory relationship. 67We require the doctor, with the assistance of the HCCC, to put in place arrangements reflecting these conditions. The arrangements shall be reflected in Draft Orders and are to be filed within 28 days. The Tribunal will then formally enter Orders. 68The Tribunal orders the suppression of the names of all patients referred to in the Schedules and within any documentary materials including the medical reports and assessments. 69The respondent shall pay the complainant's costs. 70DEPUTY CHAIRPERSON: This matter comes back before the Tribunal arising from a decision issued on 5 April 2012. In accordance with paragraph 66 of that decision the Tribunal recommended the practitioner change the nature of Dr Nemeth's practice. The Tribunal further recommended that the Medical Council of New South Wales be the appropriate body to review and approve those changes. A number of draft conditions were considered by the parties to be applied to the practice as outlined at [66]. 71In accordance with para 67, the Tribunal required the practitioner, with the assistance of the HCCC, to put those conditions into place by way of making the appropriate arrangements. Both parties come before the Tribunal with some Draft Orders reflecting those conditions. Accordingly, the following are the Protective Orders of the Tribunal:
Prescribing
Practice 3. Dr Nemeth is to practise only in a group practice or no more than three group practices approved by the Medical Council of New South Wales ("the Council"). A group practice is defined as being comprised of at least three (3) general practitioners. For the purpose of this condition, Dr Nemeth: (a) Is to forward to the Council the details of the practice(s) in which she intends to work within seven days of these orders being imposed. (b) May continue to practise in a group practice(s) pending consideration by the Council of the details provided in (a) above, provided that she practises in accordance with these conditions. (c) Is to give to the Council at least twenty-one days notice if she intends at any time to change the nature or place(s) of her practice. (d) Is to provide all details required by the Council for the purpose of it determining whether to approve any change in the nature or place(s) of her practice. 4. Dr Nemeth is at all times to practise medicine with at least one other practitioner on site. 5. Dr Nemeth is restricted to practising within the hours of 8 am to 6 pm. 6. Dr Nemeth is restricted to seeing a maximum of thirty patients per day. 7. Dr Nemeth is to advise her employer(s) and clinical supervisor(s) of all the conditions of her registration.
Supervision 8. Dr Nemeth is to nominate a supervisor within seven days of these orders being imposed to be approved by the Council to monitor and review her clinical practice in accordance with Level 3 Supervision of the Council's Guidelines (policy PCH 7.5). 9. Dr Nemeth is to provide the supervisor with a copy of the Council's Guidelines for Supervision, copy of this decision and any other reports the Council deems appropriate. 10. Dr Nemeth Is to be responsible for all costs associated with the supervision arrangement. 11. The total period of supervision will be determined by the Council. 12. Dr Nemeth must take all necessary steps to ensure that: (a) She meets with her supervisor on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that her nominated supervisor has been appointed; (b) In the course of the meetings they address medical record reviews, workload, clinical outcome, patient follow-ups, boundary issues, communication skills, overall patient care of management 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, initially on a quarterly basis a Supervision Report in a format prescribed or approved by the Council; (e) The supervisor informs the Council immediately if there is any concern in relation to Dr Nemeth's compliance with the supervision requirements and compliance with other conditions of registration, or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council. (f) In the event the nominated 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 twenty- one days of the cessation of the original supervisory relationship.
Auditing 13. Dr Nemeth is to submit to an audit, at her premise(s) of the practice, of a random selection of her medical records by a person or persons nominated by the Council to assist her compliance with the relevant provisions of the Health Practitioner Regulation (New South Wales) and the RACGP Standards for General Practices, (3rd edition) in particular Standard 1.7 'Content of Patient Health Records'. 14. The audit is to occur within six months of these orders being imposed and subsequently as required by the Council. 15. Dr Nemeth is to authorise the auditors to provide the Council with a report of his/her or their findings. 16.Dr Nemeth is to meet all costs associated with the audits and any subsequent reports.
Other 17. Dr Nemeth consents to the exchange of information between the Council, Medicare Australia and Pharmaceutical Services where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
Review of Conditions 18. The NSW Medical Council is to be the appropriate review body in relation to these conditions. These orders will have effect in two days time when published.
Amendments 07 May 2012 - Revised paragraph. Amended paragraphs: 66 07 May 2012 - Protective Orders entered 7 May 2012. Amended paragraphs: 70 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: 07 May 2012
Health Care Complaints Commission
Dr Nemeth