Health Care Complaints Commission v Foong [2026] NSWCATOD 29;

1. In determining disputed questions of fact, Tribunals have adopted the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) and s 140 of the Evidence Act 1995 (NSW) (Evidence Act) as informing the fact finding process in that while the standard of proof is to the civil standard, the Tribunal should be "comfortably satisfied" of the determination of facts cognisant of the well-known passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at 171 that:

"...[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'..."

1. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed that while strictly speaking, neither Briginshaw nor s 140 of the Evidence Act applies directly in decision making in NCAT where the rules of evidence do not apply, they continued and said at [127]:

"They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT."

1. Thus, while there is no requirement that the Tribunal approach fact finding by taking into account the principle in Briginshaw and by reference to s 140 of the Evidence Act, it is nonetheless an important touchstone to the process of fact finding.

Legislative Background and Governing Principles

1. First, and of primary importance, are the Objectives and Principles of the National Law found in s 3 and s 3A. Section 3A requires that in hearing and determining this matter we have the protection of the health and safety of the public as the paramount consideration. Consistent with this principle, the authorities stress it is not the function of the proceedings to punish the practitioner, but to protect the public. The protection of the public is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.
2. Here, the Commission contends that the Complaints, if proved, amount to unsatisfactory professional conduct and, again if proved, are of sufficient seriousness to amount to professional misconduct.
3. The National Law defines unsatisfactory professional conduct in s 139B(1) as:

(a) Conduct significantly below reasonable standard

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

....

(l) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

1. Relevant to these proceedings is the Health Practitioner Regulation (New South Wales) Regulation 2016 (the Regulations) which provide at clause 6(1) that a medical practitioner must make and keep a record for each patient of the medical practitioner. More particularly, clause 1(2)(a)-(c) of Schedule 4 of the Regulations, sets out what the content of that record should be:

(a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),

(b) particulars of any clinical opinion reached by the medical practitioner,

(c) any plan of treatment for the patient,

1. The Commission contended, and it was not disputed, that a breach of the Regulations of itself founds a finding of unsatisfactory professional conduct.
2. The Commission further asserts that in relation to the Complaints that the Practitioner's conduct was improper or unethical.
3. The Commission further contends that the matters comprised in Complaints 1 to 3, whether individually or cumulatively, amount to professional misconduct, which is defined in s 139E of the National Law as:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

1. The determination of whether conduct amounts to unsatisfactory professional conduct requires a consideration of the standard reasonably expected of a practitioner of an equivalent level of training or experience to the Practitioner. The Commission relied on a series of reports by Dr Emery Kertesz, a general practitioner on this point.

1. For the Practitioner, it was submitted that the evidence of Dr Kertesz ought to be rejected and advanced a number of bases in support of that proposition.
2. As a preamble to his report and under the heading "Background", Dr Kertesz referred to the global effect of the Covid 19 pandemic and its impact on the community. He made reference to recommendations about vaccines made by the Australian Technical Advisory Group on Immunisation (ATAGI) and how those recommendations changed from time to time. He referred in this preamble to the interest in the use of the drug ivermectin for the treatment of the disease and included quotes from the Federal Drug Administration in the USA.
3. He was questioned about the source of this information and said it came from the "world wide web", which is plain on the face of the information.
4. The Practitioner argued that Dr Kertesz did not specify the sources of this information which is a "basic part of academic writing". Well, it might be but, as the doctor said, it was provided as background context (much in the same way as the Practitioner's tender bundle of press releases and other information about the same period).
5. We do not accept that this is a basis for the rejection of his evidence. First, it was no more than background and did not form part of Dr Kertesz's opinion, nor was it suggested to Dr Kertesz that the information was incorrect or misleading.
6. Next it was argued that in relation to the Complaints, Dr Kertesz did not identify the standards against which the Practitioner's conduct was to be measured. We reject that submission. In relation to Complaint 1, Dr Kertesz, both in his report of 2 March 2023 and in his evidence, pointed to the ATAGI guidelines for the provision of exemption certificates as being the standard adopted by his peers in considering whether to issue an exemption certificate. Indeed, the Practitioner's evidence made it clear that he understood that the ATAGI guidelines provided the bases for the issue of the exemption certificates. In relation to Complaint 2, which concerns the adequacy of the Practitioner's clinical notes, the Complaint itself refers to the Regulations which set the standard expected of a practitioner's notes. Finally, in relation to Complaint 3, the Commission relied on and Dr Kertesz addressed his opinion to the Medical Council's Good Medical Practice Code of Conduct (the Code of Conduct) on the questions of the Practitioner prescribing medication for himself and referring himself for treatment.
7. We thus reject this contention.
8. Next it was argued that since Dr Kertesz had no expertise in public health or epidemiology or in the development of the ATAGI guidelines, he lacked the expertise to give evidence about the exemption certificates. Part of the criticism of his evidence was that his expertise was "no greater nor less than any other general practitioner practising in the community" which of course, is the very expertise to be brought to bear on the issue of the standard to be expected of a practitioner of an equivalent level of training or expertise. His evidence was directed to how those general practitioners in the community addressed the issues to which the Complaints are addressed. As to the issue of exemption certificates, as we have said, it was not suggested to him that the standard, being the ATAGI guidelines, was not the proper standard or was in some way incorrect and, as we have said, the Practitioner well understood that the guidelines provided the standard for their issue.
9. It was further contended that because Dr Kertesz was asked to and did comment on a criticism of him by the Practitioner made in a letter sent to the Commission, he was in some way acting outside his role of an expert and was acting as an advocate for a party. We reject this contention. The Practitioner by way of criticism, queried Dr Kertesz's practice experience and general experience. The queries were sent to Dr Kertesz and answered in a document which formed part of the tender of his reports. It seems to the Tribunal that had Dr Kertesz been challenged with those matters during his evidence it would have been perfectly acceptable for him to develop what his expertise and experience was. As it was, there was no challenge to him that his experience and practice as a general practitioner was in some way inadequate to permit him to comment on the Practitioner's conduct. The Tribunal does not accept that this amounts to him being an advocate for the Commission.
10. Next it was submitted that Dr Kertesz was unwilling to apply part 4.2.3 of the Code of Conduct which concerns patient privacy. Dr Kertesz directly addressed the proposition advanced by the Practitioner that he was protecting his patient's privacy by failing to reveal the clinical basis for providing the patient with a vaccine exemption certificate.
11. Finally, it was suggested that in an answer about the guidelines where Dr Kertesz referred to the vaccine manufacturer's criteria for exemption, it had not been previously mentioned and is unsupported. We reject the suggestion that this impugns his evidence generally or at all. It was clear to the Tribunal that ATAGI set the guidelines, whether they were derived from the vaccine manufacturers or otherwise, is irrelevant.
12. True, it is that in some aspects Dr Kertesz was in error. For example, he mistakenly referred to the Practitioner's conduct in prescribing ivermectin as being against the National Health and Medical Research Council (NHMRC) guidelines for the prescription of that drug and readily agreed that this was an error and at the time when the Practitioner was prescribing the drug, there was no prohibition in using it for "off label" purposes. However, this does not cause the Tribunal to discount or reject his evidence.
13. The Tribunal therefore does not propose to reject Dr Kertesz's evidence and will rely on it as part of the evidence in the proceedings.

1. In response to the Covid 19 Pandemic, the Federal Government initiated a limited vaccine roll-out commencing on 22 February 2021. On 30 August 2021, people in all age groups were eligible to be vaccinated.
2. From time to time legislation was passed which had the effect of making Covid 19 vaccination compulsory for certain workers and in relation to certain settings. For example, in August 2021, health staff and other people working in health settings were required to be vaccinated. The requirement for mandatory vaccination was extended to those working in aged care facilities and in education and care in September 2021.
3. Excepted from this order were health care workers with a medical contraindication to the vaccination and who had a medical contraindication certificate.
4. In August 2021, the Public Health (Covid 19 Vaccination of Health Care Workers) Order 2021 under the Public Health Act 2021 (NSW) came into effect which established mandatory Covid 19 vaccination for health staff and people working in health settings.
5. On 11 October 2021, the Public Health (Covid 19 General) Order 2021 came into effect which provided that those who were not vaccinated could not have access to certain public places, participate in large events or gatherings or enter certain establishments such as care facilities, restaurants, gyms or entertainment venues.
6. The NSW Ministry of Health created a Covid 19 Vaccine Medical Contraindication form (exemption form) to be issued by a medical practitioner certifying that the patient had a medical contraindication to receiving all of the Covid 19 vaccines then available in Australia. The exemption covered by the form could be permanent or temporarily valid for a period of up to six months of being issued. The first iteration of the exemption form was available from 10 August 2021 (the first form) and an updated exemption form came into effect from 2 September 2021 (the second form).
7. The first exemption form referred to the Pfizer and Astra-Zeneca Covid 19 vaccines, the second exemption form included reference to the Moderna vaccine. Each form provided tick boxes in which a specified contraindication was to be noted. On both forms there was provision for the issuing medical practitioner to note "other specified medical contraindication". Whether the exemption being provided was a permanent or temporary one, the medical practitioner was obliged to indicate the medical contraindication for the exemption.
8. The second iteration of the exemption form had attached to it notes for the benefit of the issuing medical practitioner and included a link to the ATAGI, which the notes indicated would provide "clinical guidance on the use of Covid 19 vaccines in Australia, including guidance on contraindications to Covid 19 vaccines".

1. Before turning to the Complaints and their Particulars, it is important to consider the Practitioner's submission that the Tribunal had incomplete patient files before it.
2. The Practitioner said, and there is no reason to doubt, that the documents and records produced pursuant to summons issued to the Medical Centre were incomplete and despite significant efforts to obtain what was missing, not all documents were produced.
3. The documents said to be missing were attachments to emails, the Practitioner's referrals to other medical practitioners and referrals to him, but of particular concern were missing patient health summaries. None of the documents identified as missing were medical notes prepared by the Practitioner in consultation with any patient relevant to these proceedings.
4. At this time to which the Complaints relate, the Practitioner was working from his home and conducting consultations by telephone. Where new patients sought an appointment for the purposes of obtaining a vaccine exemption certificate, he required them to provide a health summary from their previous general practitioner because, he said, he would not provide a certificate in a vacuum. The Practitioner said that if a patient wanted an appointment, it would not be given until they had provided a health summary. While the Practitioner had a health summary available to him for each new patient who wanted an exemption, he said he did not always read it before the consultations, sometimes he read it during the consultation.
5. Not all of the health summaries for the new patients to whom the complaint refers were produced by the Medical Centre.
6. Dr Kertesz acknowledged the Practitioner's position that some of the patient health summaries that he had available to him at the consultations were not produced by the Medical Centre and did not therefore form part of the documents relied on by the Commission. Over time leading to the hearing, some summaries were retrieved and produced and forwarded to Dr Kertesz who was asked whether the information in them would change his view about the adequacy of the Practitioner's actions. On several occasions, he did change his opinion.
7. However, and relevant to the discussion of the issues raised in Complaint 1, Dr Kertesz said that it was important to distinguish between health summaries which give a snapshot of the patient's history and a proper clinical record of a consultation which must contain key clinical details, such as assessment of the patient's presenting condition, diagnosis, and treatment plan. The health summaries may provide an indication of active diagnoses, medication, allergies, and other information. He said that these were not as important as an adequate examination and proper notes of that examination.
8. Accepting that the Practitioner had patient health summaries for the patients to whom the complaint refers, it is by reference to his notes of the particular consultation for each patient that the Commission contends that he failed to conduct an assessment of the patient history and formulate a diagnosis which led to the issue of the exemption certificate.
9. It was argued on behalf of the Practitioner that the Tribunal could not be satisfied to the relevant standard that the Practitioner did not rely on the patient summaries in coming to his assessment of the patient history and diagnosis and thus, could not find the complaint made out.
10. We do not accept that argument. Except in a few instances, the Practitioner made no note of any assessment of the patient history nor basis for a diagnosis, if one was made. The Tribunal considers that the note made at the time of the consultation may be regarded as evidence of the Practitioner's consideration of the particular patient on that occasion. From time to time, the patient notes contain references to matters obviously not referred to which the Tribunal has assumed has been taken from the patient summary.

"The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has:

(i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

(ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine."

1. Complaint 1 is supported by 11 Particulars. Particulars 1, 2, and 6 of this Complaint relate to patients to whom the Practitioner provided a permanent vaccine exemption certificate. Particular 7 of this Complaint concern patients to whom the Practitioner provided a temporary vaccination exemption certificate. Particular 8 related to the failure of the Practitioner to provide information about an exemption certificate to the Western Sydney Local Health District, and Particulars 9, 10, and 11 relate to the Practitioner prescribing ivermectin.
2. Particulars 3, 4, and 5 were not pressed by the Commission.

1. There is no dispute that in all cases where the Practitioner issued either a permanent or temporary vaccination exemption certificate, the basis on which it was provided was said to be "other specified medical contraindication". In the majority of instances, the contraindication was described as "confidential medical conditions". In a small handful of cases, the Practitioner noted a "medical condition" as being the "specified medical contraindication". In relation to Patient 4, the contraindication was said to be "family history of blood clots" and in relation to Patient 6, the contraindication was described as "autoimmune disease". In relation to Patient 14, the basis for the exemption was "congenital heart disease".
2. The Practitioner was aware that in relation to none of these patients, did the basis on which he granted an exemption fall within the ATAGI guidelines. The Practitioner said on a number of times that he did not consider the guidelines to be "set in stone" and believed that he was entitled to exercise his clinical judgment and provide an exemption for his patients which fell outside the specified guidelines.
3. In relation to Particulars 2, 6, and 7 they contend that on various dates:

"...[T]he Practitioner inappropriately issued a permanent Covid 19 vaccination exemption ...in that he:

a. failed to carry out an assessment of relevant patient history prior to issuing a permanent Covid 19 vaccination exemption certificate;

b. failed to perform a relevant objective assessment or analysis of the patients' presenting history with respect to the criteria required for a permanent Covid 19 vaccination exemption;

c. issued a permanent Covid 19 vaccination exemption certificate in circumstances where the criteria for issuing the certificate was not met."

1. Particular 1 relates to Patient 1 and concerns the Practitioner issuing her with a permanent vaccine exemption certificate.
2. The sub-particulars contend that the Practitioner:

"a. failed to perform an adequate assessment of relevant patient history prior to issuing a permanent Covid 19 vaccination exemption;

b. Issued a permanent Covid 19 vaccination exemption certificate in circumstances where it was not appropriate to issue one as the criteria for issuing the certificate was not met."

Failed to carry out an assessment of the relevant patient history

1. Turning then to the aspect of the Particulars that contend the Practitioner failed to make an adequate assessment of the patient history.
2. Dr Kertesz gave evidence about what constitutes an adequate assessment of a patient. He said it is comprised of the following parts; taking of the patient's history and reason for the consultation; an assessment of the patient's history (together with investigations and examinations); a diagnosis; and a treatment plan of management.
3. Relevant to this sub-particular, Dr Kertesz was critical of the Practitioner's failure to make an assessment of the patients' history and to formulate a diagnosis based on that assessed history.

Failure to assess the patient history and diagnosis against the criteria for exemption

1. Secondly, it is contended that the Practitioner failed to assess the patient history and his diagnosis against the criteria for exemption.

What were the criteria for the provision of an exemption certificate?

1. Dr Kertesz was asked questions about the provision of certificates generally according to the Code of Conduct by which medical practitioners are able to provide certificates of various kinds. He said that this provision relates to certificates for illness and agreed that the practitioner is permitted to write "medical illness" without specifying what that is in order to protect the patient's privacy but said:

"But what that certificate refers to is an entity, a physical medical or pathological entity rather than a fear or a concern that a patient has that they may come down with a medical illness"."

1. Dr Kertesz said while patient notes are themselves confidential, at this time in particular "... we had to deal with facts rather than assumptions..." and " ...the more detail in the notes and the more correct the notes were the more those certificates would stand up at any later date". He said that the term "confidential medical condition" is not a specified contraindication because it is a "totally non-specific statement" nor was it a specified medical contraindication for the purposes of the exemption criteria.
2. Dr Kertesz said that the vaccine contraindication form itself provided specific reasons why the vaccine exemption may apply. Dr Kertesz said the criteria for providing an exemption certificate were what was on the forms and in the information provided by the link on the second iteration of the form. He said when asked what was the criterion against which the Practitioner's conduct was measured in coming to his opinion:

"... the criteria or the standard is the standard of practice set by practitioner \s of an equal level of training or experience and the vast majority of practitioners who had the same level of training or experience were not issuing certificates...So the general consensus of opinion at that stage was to follow what was on the Covid 19 vaccination contraindication lists...then most general practitioners... did not fill out those certificates because the criteria weren't met."

1. It is important here to note that it was not the Practitioner's evidence that he did not understand that the vaccine contraindication forms set out the bases on which an exemption may be granted nor was he unaware of the further information contained within the link provided to the second iteration of that form. He said that he regarded the part on the form which said "any other specified contraindication" permitted him, in the exercise of his clinical judgment, to grant an exemption.

1. Particular 1 concerns Patient 1 and contends that the Practitioner:

"a. failed to perform an adequate assessment of relevant patient history prior to issuing a permanent Covid 19 vaccination exemption certificate;

b. issued a permanent Covid 19 vaccination exemption certificate in circumstances where it was not appropriate to issue one as the criteria for issuing the certificate was not met."

1. According to the Practitioner's notes, the patient told him that her usual doctor had refused to give her an exemption from vaccination.
2. The notes relevantly continue:

"TIA ...heart block and pace maker graphene oxide electro conductor"

1. The Practitioner has written under "assessment": "risk of s/e from vaccination of Covid 19". He provided her with a permanent exemption certificate citing "confidential conditions" under the heading "other specified medical contraindication".
2. The notes do not specify what condition was diagnosed by the Practitioner which led to the provision of the certificate nor why he referred to it as "confidential", although he said he "assumed" it was because of the patient's wishes. Nor do the notes set out the side effects of which the patient was at risk should she receive the vaccination.
3. When asked what the diagnosis was that gave rise to the provision of the certificate, the Practitioner said it was a risk of stroke. There are no details of that diagnosis to justify the provision of the exemption certificate.
4. The certificate was issued in circumstances where the criteria for it were not met.
5. Dr Kertesz noted that while the Practitioner certified that the patient was unable to have any vaccine, there was no indication or validation of why that was so. He considered the Practitioner's conduct in providing the exemption certificate fell significantly below the expected standard.
6. The Tribunal finds Particular 1 to Complaint 1 made out.

1. Particular 2 concerns Patients 2 to 9, 11, 12, 15, 16, 18, and 19. In relation to each of the Particulars alleged:

"2. Around July to October 2021, the practitioner inappropriately issued permanent Covid 19 vaccination exemptions ... in that he:

a. failed to carry out an assessment of relevant patient history prior to issuing a permanent Covid 19 vaccination exemption certificate;

b. failed to perform a relevant objective assessment or analysis of the patients' presenting history with respect to the criteria required for a permanent Covid 19 vaccination exemption;

c. issued a permanent Covid 19 vaccination exemption certificate in circumstances where the criteria for issuing the certificate was not met."

1. While not formally withdrawn by the Commission, there was no cross examination of the Practitioner in relation to Patient 12 and it was submitted and the Tribunal accepts, that the particulars of this patient should not form part of the Complaint.

Failed to carry out an assessment of the relevant patient history

1. In relation to Patients 2, 5, 7, 8, 15, 16, and 19, the notes record the patients' concerns and reasons for attending but contain no assessment of the patient's history nor diagnosis of the patient's presenting condition. It is accepted that given many of these consultations were conducted by phone and there would be no scope for physical examination, nonetheless, for these patients sub-particular (a) of Particular 2 is made out
2. In relation to the balance of the patients to whom this complaint relates, the Practitioner's assessment consists of no more than a few words. He agreed in his evidence that on noting the patient's history he conducted no tests nor made enquiries of the patients to gauge the extent of or seriousness of the complaints.

1. The Practitioner recorded "anxiety" by way of assessment for this patient. Patient 3 told the Practitioner that she wanted an exemption and his note reads:

"s/e, a lot of anxiety; stressed among friends, talk of the moment, feeling pressure".

1. At this consultation the Practitioner provided the patient with a permanent exemption letter stating that she had a "medical condition" as a result of which she was unfit for Covid 19 vaccination.
2. The patient returned and on this occasion the Practitioner noted:

"Feeling worse; applying for a job in medical field; people are going out, sleep: it's ok; trouble falling asleep; sleeping later and finding hard to get out of bed, broken sleep; nightmares: what's going in world to her and her health, low energy, not big appt, no weight loss; feels depressed; crying every 2nd day, feels cornered, ...feels anxious;..."

1. The Practitioner's assessment is "major depression/adjustment disorder".
2. The Practitioner agreed that there is no note of any enquiry about the nature or extent of her anxiety or what was making her anxious. However, he said he "believed" the patient told him what was making her anxious.
3. The Practitioner agreed that he made no enquiries directed to understanding the severity of her anxiety and depression.

1. The Practitioner's assessment of Patient 4 was "high anxiety". He provided the patient with a temporary exemption certificate on which the reason was stated to be "family history of blood clots".
2. The notes set out the patient's complaints in which they assert they have "high anxiety" and give details of Patient 4 "not sleeping, focussed on thinking about it all the time...not eating well... shaky, 3 days palpitations-not yet".
3. There is no note of any assessment of the patient's account of anxiety nor any note about a family history of blood clots, although the Tribunal accepts that this may have been included on the health summary and not referred to in the notes.

1. Patient 6's assessment was "autoimmune disease". The notes indicate that the patient does not want to be vaccinated and his work is "pushing" vaccination. He told the Practitioner that he suffered from vitiligo and haemochromatosis.
2. The exemption certificate identified autoimmune disease as the basis for exemption.
3. There is no note of any assessment conducted by the Practitioner which led him to conclude that the patient had an autoimmune disease, and indeed in his evidence said at first that vitiligo (a condition of the skin as the Tribunal understands the Practitioner's evidence) is an autoimmune disease, later saying that it is not necessarily an autoimmune disease but often is and he considered that the patient "may" have an autoimmune disease.
4. He agreed that he conducted no tests to determine whether the patient had an autoimmune disease nor how the Practitioner came to that conclusion. The Practitioner added that there was a higher chance of this patient having side effects to the vaccination based on his history but there is nothing in the notes of any such consideration as part of the assessment.

1. Patient 9's assessment is "anxiety". The notes show that the patient did not want to have the vaccine and said that a neighbour died after having the vaccine and he referred to two people who were in hospital after having the vaccine. He told the Practitioner he feels depressed and is worried.
2. In relation to this patient, the Practitioner agreed that there is no diagnosis recorded and he said he gave the certificate based on the patient's account. He did not enquire about the circumstances of the person said to have died from the vaccine.

1. Patient 11's assessment was "multiple medical conditions". The notes show that the patient told the Practitioner that she had been diagnosed with autoimmune thyroiditis, had a history of cardiac arrest post operatively, had suffered pseudo-seizures, and was anxious. The notes refer to other conditions which are not referred to in the notes, and which may reflect matters contained in the patient health summary.
2. However, the Practitioner agreed that the notes contain no indication of how the matters he was told were assessed by him, what diagnosis he arrived at or how they provide the basis for an exemption.

1. Patient 18 was an existing patient of the Medical Centre and, relevantly, saw the Practitioner twice. On the first consultation, the patient told the Practitioner that she was worried because of two brain aneurysms and blood clots and worried about mandatory vaccination. The Practitioner's assessment was "vaccine worries".
2. On the second occasion, the notes show the patient asking whether she can "take something preventative" as she was worried about isolating.
3. The assessment recorded is "preventative care for Covid 19" and the Practitioner gave her an exemption letter stating that she had "medical conditions" putting her at "risk of severe complications of Covid 19 vaccine".
4. No assessment to form the basis of that assertion is made nor is there any diagnosis recorded. The Practitioner said that he thought the letter was appropriate given the patient's history, which was of brain aneurysms.

1. It is clear from the records that in nearly every instance, the Practitioner made no note at all of his opinion or diagnosis, or of his objective assessment of the patient, or if an assessment was proffered, it was unsupported or unexplained with clinical reasoning. When asked during his evidence about particular patients, he regularly said he could not recall what his diagnosis or opinion was, often saying "I would guess" or words to that effect. In the case of Patient 5, when first taken to the notes he said that the reason he gave her an exemption certificate was "insurmountable vaccine anxiety" and when the notes were returned to, said that it was because of risk of heart conditions or maybe both. In these circumstances, it is difficult to place a great deal of weight on the Practitioner's assertions that he made a diagnosis at all.
2. It is perhaps important to note that the Particulars of Complaint 1 do not relate to the Practitioner's inadequate record keeping, to which Complaint 2 is directed, but to his lack of objective assessment and of a clinical basis for the provision of the certificate.
3. The Tribunal finds this sub-particular of Particular 2 is made out in relation to each patient to whom the complaint relates.

(b) Failed to perform a relevant objective assessment or analysis of the patients' presenting history with respect to the criteria required for a permanent Covid 19 vaccination exemption.

1. In respect of none of the patients to whom this complaint refers, did the Practitioner refer to the criteria for exemption provided by the ATAGI guidelines and listed on the face of the exemption certificate when assessing the patient's history or diagnosis. This contention is made out.

(c) Issued an exemption certificate which did not meet the criteria for issuing the certificate

1. Of the patients referred to in this Particular and in relation to Patient 1 to whom Particular 1 relates, each patient was issued with an exemption certificate where the heading "other specified medical contraindication" contained the description "confidential medical condition".
2. In none of the notes of these patients was the "confidential medical condition" specified. In each instance, the Practitioner was asked to identify what was his diagnosis that led him to the conclusion that it was a medical contraindication. The basis of the exemption certificates provided by the Practitioner fell broadly into two categories: patients who he assessed as having a mental illness or mental health issue; and patients with a physical issue.
3. For example, in relation to Patient 1 the Practitioner said the diagnosis supporting the certificate was risk of a heart condition. In relation to Patient 2, the Practitioner said as to the diagnosis he made: "I'd say an adjustment disorder". Patient 3's diagnosis was "major depression and adjustment disorder". When asked about Patient 5, the Practitioner said that while no diagnosis is noted, "I could tell she had insurmountable vaccine anxiety".
4. As to the patients on whose exemption certificates the Practitioner wrote "confidential conditions", his evidence on this issue was somewhat confusing. He said that he wrote "confidential" because the patient requested it (although there is no reference in any of the patient notes to a discussion about confidentiality or a patient request for it). The Practitioner when asked why, then, there was no note of a discussion of confidentiality said that because he wrote "confidential condition", the discussion was "implied". The Practitioner also said that patients would not want the fact that they had a mental illness bandied about as a reason for describing the reason as "confidential condition".
5. The Practitioner also referred to the Code of Conduct which dealt with patient confidentiality as the basis for not writing the actual condition giving rise to exemption on the form. He was asked whether because of the fact that the patient wanted an exemption certificate they were, in effect, waiving so much of their right to confidentiality that related to the condition supporting the exemption. The Practitioner said that if the patient had given him permission to include the condition, he would have noted it.
6. On this point, Dr Kertesz said that patient confidentiality as referred to in the Code of Conduct refers to external access to a patient's files and said that in his opinion, if a certificate requires a specific reason, then that specific reason should appear on it. There is considerable force to this evidence.
7. Perhaps a more persuasive reason was one advanced by the Practitioner when he said that on each occasion when he provided an exemption to these patients he knew he was doing so outside the ATAGI guidelines and accepted that his proffered reason for doing so (we say proffered because in the majority of the patient notes, there is no diagnosis or opinion recorded supporting the exemption) was not itself within the guidelines. He said that he understood that if the actual basis on which he provided the exemption was known, the certificate may not have been accepted. He said, for example:

"I wrote certificates at that time, outside the advice given by ATAGI, which was quite clear, and therefore, I would often put them as confidential conditions, but not always."

1. The Practitioner further said in relation to a patient with hypertension which he believed put them at risk of side effects from the vaccination:

" ... if I'd written down hypertension they were clearly outside the guidelines of ATAGI, and would've been - may well have been rejected by the workplace."

1. The Practitioner agreed that an employer being presented with a certificate given for "confidential conditions" would have no idea on what basis it was issued.
2. In his evidence he accepted that mental illness, anxiety, or vaccine hesitancy were not accepted bases for exemption and he understood that, for example, a family history of blood clots was not a medical contraindication.
3. It is clear that the Practitioner well knew the metes and bounds of the ATAGI guidelines and knew that when he issued the certificates to the patients to whom this complaint refers, they were not within those guidelines. In those circumstances he plainly and inappropriately issued exemption certificates outside the criteria for their issue.
4. In relation to each of the patients to whom Particulars 1 and 2 of Complaint 1 relate, Dr Kertesz's opinion was the Practitioner's failure to assess the patient's history and lack of clinical reasoning for providing the certificate and in failing to assess the patient's history against the criteria for exemption from vaccination was conduct which fell significantly below the expected conduct.
5. The Tribunal is comfortably satisfied that the Commission has established each of Particulars 1 and 2 of Complaint 1.

1. This Particular relates to Patient 17 and asserts that the Practitioner inappropriately issued a permanent exemption certificate in that he:

"a. failed to carry out an assessment of relevant patient history prior to issuing a permanent Covid 19 vaccination exemption certificate;

b. failed to perform any relevant objective assessment or analysis of the patients' presenting history with respect to the criteria required for a permanent Covid 19 vaccination exemption;

c. issued a permanent Covid 19 vaccination exemption certificate in circumstances where the criteria for issuing the certificate was not met."

1. Patient 17 was an existing patient of the Medical Centre and had consulted the Practitioner some years before.
2. In the notes of the relevant consultation, the Practitioner sets out the patient's account of a previous workplace injury including complaint of permanent pain and using opiates. Under the heading "family" the Practitioner has noted:

"Son of a doctor, died of a heart attack...scared of getting the same (past angina) was suicidal recently 8 weeks ago

Multiple ops for back

Chronic pain

Past 3 weeks not sleeping, worrying

Staying awake till 3am".

1. The Practitioner's assessment is "multiple comorbidities". He issued a permanent exemption citing "confidential conditions". The Practitioner was unable to say why he noted the basis of the certificate to be confidential nor why he did not record the diagnosis supporting the issue of the exemption certificate. The Practitioner said, looking at the notes, "... I think there's a mental health condition there. I'd say probably depression and anxiety but I haven't written that out..."
2. The Practitioner suggested that it was the patient who requested the exemption certificate but agreed that there is no indication in the notes of that nor is there any indication of the basis on which the certificate was given.
3. In relation to this patient, Dr Kertesz said that the Practitioner's failure to assess the patient's relevant history, his failure to provide clinical reasons for providing the certificate and failure to assess the patient's history against the criteria for exemption, was conduct falling significantly below the expected standard.
4. The Tribunal is satisfied that on the face of the note that the Practitioner failed to make an assessment of the patient's history and come to a diagnosis, nor did he assess his diagnosis or analysis of the patient's presenting history against the criteria for an exemption.
5. The Tribunal is further satisfied that the Practitioner inappropriately issued the exemption certificate outside the ATAGI guidelines.

1. This relates to the Practitioner's issuing of temporary exemption certificates to Patients 20 to 24 and here the Commission contends that he inappropriately issued the certificates, in that he:

"a. failed to carry out an assessment of relevant patient history prior to issuing a temporary Covid 19 vaccination exemption certificate;

b. failed to perform a relevant objective assessment of the patients' presenting history with respect to the criteria required for a temporary Covid 19 vaccination exemption;

c. issued a temporary Covid 19 vaccination exemption certificate in circumstances where the criteria for issuing the certificate was not met."

1. The notes for the consultation with Patient 20 identify that the patient had been refused a certificate by her usual general practitioner and that she wanted an exemption from the Practitioner. The patient notes reflect that she told the Practitioner that she does not want the vaccine and the notes read: "alarming no long time safety data. Will go against all she has to do to bring her good health, makes her anxious". The notes indicate: "imagining herself being fired and being forced to have the vaccine, unwanted imaginations, thoughts of herself going backwards in health".
2. No assessment or diagnosis of the patient is indicated. The Practitioner provided this patient with a temporary vaccine exemption on the basis of "confidential medical conditions".
3. The Practitioner said that the patient's diagnosis was "anxiety" to the extent of giving her unwanted imaginations. When it was suggested to the Practitioner that there is a difference between a person being anxious and having a medical condition of anxiety, the Practitioner said:

"When it's related to their health, I think that's probably a bit - it's something that can be more than just anxious in the sense of it can be leading towards anxiety if they were forced to have the vaccine and feeling coerced into having the vaccine".

1. The Practitioner was asked what was it about this patient's condition that prompted him to provide a temporary certificate and said:

"Well, it gives her time to think about whether the long-term safety data comes in and whether that confirms her understanding of the vaccine or whether it changes her mind".

1. The note for Patient 21 records the patient advising the Practitioner that he had been notified by his workplace that unless he is vaccinated he could not work.
2. He told the Practitioner that he did not want to be forced to take the vaccine. He said he is afraid of having the vaccine, it is causing him significant stress and not sleeping well. He told the Practitioner that he was not sleeping well and has night terrors 1-2 times per week.
3. The Practitioner provided the patient with a temporary exemption certificate citing "medical condition".
4. There is no note of an analysis of the patient's history, no indication of a diagnosis and no basis for the Practitioner's conclusion that the patient should have an exemption certificate and that it should be temporary. The Practitioner said that the medical condition was "severe stress and anxiety".
5. The certificate was questioned by the patient's employer, Western Sydney Local Health District, and the Practitioner was invited to provide further information about the basis on which the certificate was issued. This forms the basis of Particular 8 to which we will return.

1. Patient 22 told the Practitioner that he did not want to be vaccinated. It appears that he was refused an exemption by his usual general practitioner and told the Practitioner that he does not sleep at night, with the notes stating "stressed, mortgage to pay, read up on vaccine very anxious, cannot sleep".
2. The patient told the Practitioner that he was having palpitations and tremors in his hand. He said "feels like would drop dead anytime - doctor; mobile heart attack".
3. The Practitioner's assessment of this patient's history and presenting complaints was "heart risk, mental health risk". He issued a temporary certificate citing "medical condition". The Practitioner said that patient was stressed because he had to be vaccinated otherwise he would lose his job. The basis on which the Practitioner provided the certificate was said by him to be on the basis of his mental health and "...possibly the fact that he's at high risk of having a heart attack".
4. The Practitioner said that he knew that mental health issues were not a basis for exemption. There is no evidence that risk of heart attack was an accepted medical contraindication.

1. Patient 23 told the Practitioner that he was worried he would lose his job if he was not vaccinated and said he was worried about side effects from the vaccine. His previous doctor had referred him to a psychologist and refused him a certificate.
2. He told the Practitioner he was:

"[S]weating nervous, panicking if thinks about it for too long, sleep - not very well, sometimes no sleep worrying about losing his job. ...feels sad, lost appetite, lost some weight lethargic no motivation".

1. The Practitioner's assessment of the patient was of an "adjustment disorder- borderline severe anxiety/depression".
2. It is clear from the Practitioner's evidence, that his diagnosis was based on the history provided by the patient. The notes record no questions or enquiries by the Practitioner into the nature and extent of the patient's complaints and concerns, nor the basis on which the Practitioner considered he had an adjustment disorder-borderline severe anxiety/depression.
3. As to why the Practitioner provided this patient with a temporary certificate, the Practitioner said that the patient's previous general practitioner recommended he see a psychologist and if he did, he might change his mind about the vaccine. The Practitioner did not encourage the patient to see a psychologist.

1. Patient 24 was a medical practitioner working in a hospital. He told the Practitioner that he was seeing a psychologist for anxiety and depression "partly because of Covid 19". The notes suggest that he had been asked by his employer to be vaccinated. The patient reported that every few months he would "get into low phase". He was waking up at night and had problems getting back to sleep.
2. In bold type at the top of the notes, the Practitioner has recorded what he was told by the patient:

"Aware of myocarditis risk; 100 fold increase in myocarditis saw a corrected review of gynaecologist review of safety in pregnancy.".

1. Other than recording what the patient told him, the notes reveal no objective assessment or diagnosis nor a plan of treatment.
2. The Practitioner provided this patient with a temporary certificate citing a "confidential medical condition".
3. The Practitioner said that while there is no note of assessment or diagnosis, "... it was in my mind as an assessment."
4. The Practitioner was asked what the confidential medical condition was that led to him providing the certificate and said it was depression and anxiety. He said that at that time he was aware anecdotally of a risk of myocarditis in young men but said that that was not the basis of the certificate.
5. While in relation to this patient, the Practitioner said that he was not sure whether the guidelines for issuing a certificate included mental health conditions, when asked the same questions in relation to other patients, the Practitioner agreed that mental health conditions were not then regarded as a proper basis for the provision of an exemption certificate.

1. In relation to the Practitioner's consultation with each of these patients, Dr Kertesz said that his failure to make an objective assessment of the patient's history, or against the criteria for exemption, or to set out his clinical reasoning in relation to the provision of the exemption, was conduct which fell significantly below the expected conduct.
2. Nor did the Practitioner assess the patient's presenting history against the criteria for the provision of an exemption certificate.
3. Further, in relation to each of these patients, the Practitioner issued an exemption certificate in circumstances where the criteria for its issue were not met.
4. In relation to each of these patients, the Tribunal is comfortably satisfied that the particulars of the Complaint are established.

1. This concerns Patient 21 and contends that the Practitioner engaged in unsatisfactory professional conduct in not responding to a request for information about a temporary exemption certificate provided by him for Patient 21.
2. The certificate of exemption provided to Patient 21 was dated 10 September 2021. On 16 September 2021 Geoff Sheargold, Human Resources Manager from the Western Sydney Local Health District, wrote to the Practitioner. The letter referred to the then Public Health Order which mandated all health care workers in NSW be vaccinated against Covid 19 and then referred to the exemption based on a medical contraindication. The letter continued and requested the Practitioner complete an attached form confirming that Patient 21 had a medical condition which was a medical contraindication making them unable to receive any of the Covid 19 vaccines.
3. The Practitioner did not reply to that letter. He said he asked the patient's consent to provide information and the patient refused. There is no note in the patient's file of any conversation about this around the time of the letter. Nor did the Practitioner speak to Mr Sheargold to inform him that he did not have the patient's consent to discuss the basis of the certificate with him.
4. Dr Kertesz was asked to comment on the Practitioner's failure to respond and said it was conduct that fell significantly below the standard expected of a practitioner of equivalent training and experience as the Practitioner. Dr Kertesz was not challenged on this view. However, Dr Kertesz did not refer to any particular basis or guideline on which his opinion was formed and while it is perhaps to be found in the Code of Conduct, the Tribunal is not minded to assume that is the basis of his opinion.
5. The Tribunal does not find this Particular of Complaint 1 made out.

1. These Particulars relate to the Practitioner's prescription of the drug ivermectin to patients both for treatment of Covid 19 and as a prevention against becoming infected. The patients concerned are Patients 25, 26, and 27 to 34.
2. There is no dispute that ivermectin was at all relevant times a drug commonly prescribed for intestinal worms and parasites and could be used topically for head lice or rosacea. It is a drug which is listed on the Pharmaceutical Benefits Scheme for these uses and requires a prescription.
3. During the Covid 19 pandemic, both in the USA and in Australia, there was an interest in whether ivermectin could be used to treat or prevent a Covid 19 infection.
4. There was, at all times material to these Particulars, no prohibition on the prescription of ivermectin for "off label" purposes, that is for purposes other than the treatment of worms and the like. However, on 10 September 2021 the Therapeutic Goods Administration restricted its use in treatment or prevention of Covid 19. It is not suggested that the Practitioner prescribed the drug after that time.
5. Dr Kertesz said that before this time, while the prescription of ivermectin was not proscribed, the use of it was not considered mainstream treatment or for the prevention of Covid 19. He further said that at the relevant time, while "off label" use of ivermectin was not illegal, "almost all regulatory advice" was to the effect that its use was unproven. He further said that off label use carried a risk to the patient.
6. The Practitioner said that he prescribed ivermectin in combination with doxycycline and zinc for patients following a protocol developed by two eminent physicians, Professor Thomas Borody and Professor Robert Clancy. The Practitioner said that he understood that Professor Borody was conducting a trial of what he called "triple therapy", that is the prescription of these three agents to determine their effectiveness in treating Covid 19 infections and, later, to prevent infection.
7. The Practitioner had had contact with Professor Borody who he knew from referring patients to him and Professor Borody suggested that the Practitioner implement his "triple therapy", although it is not suggested that the Practitioner's patients who were prescribed these three agents formed part of the trial.
8. There were two iterations of the protocols. The first protocol for treatment of infection (exhibit 7) required the prescription of ivermectin 12mg, doxycycline 100mg, and zinc picolinate 50mg. The patient was required to take two doses of ivermectin on the first day and then on each of the following days to day 10, to take one dose. Supplementing the dose of ivermectin, the patient was required to take two tablets per day (morning and night) of doxycycline and one of zinc. The treatment lasts for 10 days.
9. The document also sets out common side effects. It also notes "important points during and after treatment" being that, 4 days after completing the course of treatment, the patient should have a Covid 19 test. Oximeter and temperature readings should be recorded daily.
10. This protocol was updated on 31 August 2021 and the doses of ivermectin changed to 24mg twice per day rather than 12mg. The updated document requested the patient to monitor their oximetry, temperature, and symptoms between days 2 and 10.
11. For prevention of a Covid 19 infection, the first iteration of the protocol required the patient to take one dose, 12mg, of ivermectin and one dose each of doxycycline 100mg and zinc picolinate 50mg on one day and repeat that treatment every fortnight. Again, common side effects were mentioned and it was suggested that after 4 weeks of use the patient have blood tests to detect any adverse effects.
12. This protocol too was amended on 31 August 2021 and the dose of ivermectin increased to one dose of 24mg and one dose each of doxycycline and zinc for one day with the treatment to be repeated every fortnight.
13. The Practitioner was provided with these protocols for use in treating his patients.
14. The Practitioner said that he would not have prescribed ivermectin but for the advice and support of Professor Borody and in pursuit of his protocols. However, the details of the Practitioner's prescribing of ivermectin on many occasions did not conform with either of the protocols. When asked about this, the Practitioner said that he did not regard the protocols as being "set in stone".
15. Before dealing with these Particulars, it must be noted that there was no evidence nor any suggestion that the Practitioner was in some way wrong or acting illegally in prescribing ivermectin while following Professor Borody's protocol or on Professor Borody's advice.
16. The gravamen of the Particulars in relation to his prescribing go to his failure to undertake a relevant assessment of the patient before prescribing ivermectin, his failure to order pathology testing before prescribing it, and his failure to provide his clinical reasoning for the prescription of it.

1. Turning then to Patient 25, the Particulars contend:

"...the practitioner inappropriately prescribed the schedule 4 drug Ivermectin in combination with the drugs and supplements (set out in Annexure B) to Patient 25 in that he prescribed Ivermectin without clinical reasoning."

1. The notes for this patient reflect that the Practitioner consulted with this patient three times. On the first consultation, the Practitioner provided him with a letter of exemption from vaccination.
2. On the second consultation the patient told the Practitioner that he was very stressed by the idea of vaccination, his sleep was affected and sometimes he had palpitations and tremors. At this consultation, the Practitioner prescribed ivermectin, doxycycline and zinc. There is no noted objective basis for the prescription in the notes nor any indication that the prescribing was according to the protocol. However, under the list of medications prescribed is the word "prevention".
3. At the third consultation the Practitioner noted that the patient wanted a prescription for "doxy and zinc" which he provided for "covid prevention". He did not prescribe ivermectin.
4. The Practitioner agreed that none of the matters contained in the patient's history were addressed by the prescribing. He agreed that he made no reference to the protocol in the notes but said he "usually" gave patients a copy of the protocols, although there is no note to that effect.
5. Dr Kertesz considered the Practitioner's conduct fell significantly below the expected standard because of the lack of clinical reasoning at the consultation at which the Practitioner prescribed these drugs and he did not expose his clinical reasoning as to why the drugs were prescribed.
6. While the Practitioner's notes for this consultation (and many others) were significantly deficient, the Tribunal is of the view that the word "prevention" reflects the clinical basis on which the Practitioner issued the drugs to the patient.
7. This Particular is not made out.

1. The Particular in relation to Patient 26 contends that in prescribing ivermectin and other drugs and supplements he:

"(a) failed to undertake any relevant objective assessment of Patient 26 in consultations with the patient prior to prescribing them Ivermectin;

(b) prescribed Ivermectin to patient 26 without clinical reasoning."

1. Patient 26 consulted with the Practitioner four times. On the first occasion the notes show that the patient was "asking about ivermectin" and noted he has "asthma, sinus, allergies-hay fever, reacted to aspirin".
2. There is no diagnosis recorded. The Practitioner provided the patient with a prescription for "ivermectin 3mg tablet as directed".
3. On the second consultation, the Practitioner recorded "discussion about preventive protocols" and he provided the patient with a prescription for doxycycline 100mg "orally per day as directed".
4. On the third occasion the notes show "ivermectin enquiry" and the Practitioner prescribed vitamin C and zinc.
5. The Practitioner agreed that there is no note of the reason why he prescribed ivermectin and he agreed that he was not prescribing that drug in accordance with Professor Borody's protocol. He prescribed the drug because the patient wanted it in case they got sick.
6. In relation to the second consultation in which "preventative protocols" were discussed, the Practitioner said that while zinc was not prescribed, he would have told the patient to buy it over the counter and he was in fact following Professor Borody's preventative protocols. There is nothing in the notes to support this. The Practitioner said that whether the patient was prescribed zinc picolinate depended on whether they wished to have the drugs comprising the protocol provide by a compounding pharmacy or buy the zinc over the counter.
7. Dr Kertesz was of the opinion that the Practitioner's conduct in this regard fell significantly below the expected standard because of lack the of clinical reasoning, he made no diagnosis, he sought no pathology tests before the drugs were prescribed, and he gave no reason for the prescription. Dr Kertesz said that the relevant pathology tests to have been ordered would be of liver and renal function.
8. In this regard, and in relation to this patient, the Practitioner agreed that he ordered no pathology before prescribing and said it was because he was under time pressure to deal with the numbers of telehealth consultations scheduled for him each day.
9. The Tribunal finds the sub-particulars of this Particular made out.

1. This Particular relates to Patients 27 to 34. The Particular contends that the practitioner prescribed ivermectin, drugs and supplements, and:

"(a) failed to adequately assess, examine or order appropriate investigations and follow a structured management plan in the care and treatment of the patients;

(b) prescribed Ivermectin without clinical reasoning."

1. So far as sub-particular (a) contends a failure to order appropriate investigations, as with the earlier patients to whom the Practitioner prescribed ivermectin, the Practitioner agreed that he ordered no pathology testing before prescribing ivermectin.

1. Patient 27 told the Practitioner that he had Covid 19 and it was then six days since he was infected. He described having "early temp fever and headache loss of taste smell". The patient described low energy levels. He told the Practitioner that he was coughing up mucus "bit of redness no ST" "went to hospital and checked out - pneumonia mild fevers 39 no loose actions".
2. The notes record that the Practitioner assessed the patient as having Covid 19.
3. As to the plan of management, the Practitioner noted "hydrolyte 2 litre, triple therapy verbal consent verbatim, oxygen sat, Panadol temp take". The plan indicated that the patient should take vitamin C and D.
4. The Practitioner prescribed ivermectin, doxycycline, and zinc.
5. The Practitioner said he assessed the patient as having Covid 19 based on the symptoms described and added that it was his usual practice to ask the patient to provide proof of infection but that was not recorded.
6. Dr Kertesz said in relation to this patient that the diagnosis of Covid 19 is not confirmed in the notes. While there is no note of the patient providing proof of a positive Covid 19 test, the Practitioner said, not unreasonably, that the patient's symptoms were strongly suggestive of Covid 19 and that while there is no note of it, proof of a test was required and produced. The Tribunal is prepared to accept the Practitioner's evidence that in cases where a patient reported having Covid 19, the practice required he was shown evidence of a positive test, albeit, there is no note of him seeing it.
7. However, there is no record as to why the Practitioner prescribed the three drugs nor any reference to the protocol but he said the prescription "implies" that he was following the protocol. In the notes there is an entry "triple therapy verbal consent verbatim" which suggests that in this case the Practitioner discussed the prescriptions and their purpose with the patient.
8. The Tribunal accepts that the rationale for the prescription of ivermectin and the other drugs used in Professor Borody's protocol is set out in the notes.
9. The Tribunal finds that sub-particular (b) is not made out for Patient 27.

1. Patient 28 consulted the Practitioner on 28 August 2021 and told the Practitioner that she had Covid 19 on 10 August and described symptoms of body aches fever sweating loss of taste and smell, and loose bowel actions.
2. There is no assessment or plan noted.
3. The Practitioner prescribed ivermectin along with doxycycline and zinc with instructions as to when to take them. There is no note that the prescriptions followed the protocol nor any explanation about why they were being prescribed.
4. The Practitioner agreed that ivermectin did not address the patient's symptoms but said that it addressed the virus causing them. While again there is no note of it, the Practitioner said that the patient would have been required to produce proof of infection. Equally, the Practitioner said that while no diagnosis or plan is recorded, it is "implied" by the prescription.
5. Dr Kertesz was critical of the Practitioner failing to follow a plan of management but referred to the request for the patient to have a follow up Covid 19 test which, the Tribunal understands, forms part of the Borody protocol. Dr Kertesz said that the failure to record the patient's consent to the therapy, that the Practitioner made no assessment of the patient nor provided a reason why the drugs were prescribed, was conduct which fell significantly below the expected standard.
6. The Tribunal agrees and finds this Particular made out.

1. This patient consulted the Practitioner twice. On the first occasion, the patient referred to being extremely stressed and not working. The patient did not want to take the vaccine. The Practitioner assessed the patient as "anxiety state" and provided an exemption certificate.
2. On the second consultation, the patient told the Practitioner that they were stressed "on job sites" "a lot of people getting covid despite vaccination".
3. On this occasion there is no assessment or diagnosis. The Practitioner prescribed the three drugs in the triple therapy protocol. The Practitioner agreed and it is plain, that no assessment was made of this patient's presenting history nor was there a discussion with the patient about the protocol, merely the prescribing. No reasons were given for the prescriptions.
4. These failures were regarded by Dr Kertesz as falling significantly below the expected standard.
5. The Tribunal agrees and finds this Particular established.

1. This patient told the Practitioner he had "mild covid" and "had all the symptoms". He was taking his wife's medication (although what that was is not specified). He told the Practitioner he was "coughing, it was dry, feels really cold, weakness, getting better joints not hurting now, better now 5/10".
2. The Practitioner has noted the patient's oxygen levels.
3. The Practitioner assessed the patient as having Covid 19.
4. He wrote prescriptions for the "triple therapy". There is no note of why he did so nor any note of a discussion with the patient about the protocol, nor how the protocol should be followed.
5. Other than writing the prescriptions, the Practitioner made no plan for the further management of the patient.
6. Dr Kertesz regarded the Practitioner's conduct in this consultation as falling significantly below the expected standard because there was no plan of management and a lack of clinical reasoning for the provision of the prescriptions. While the words "triple therapy" may be considered a reflection of the Practitioner's clinical reasons for the prescribing, his failure to undertake an objective assessment of the patient, order the appropriate investigations, and failure to provide a plan of management for the patient is sufficient for the Tribunal to accept the opinion that it is conduct which falls significantly below the expected standard.
7. The Tribunal finds the Particulars in relation to this patient made out.

1. The first consultation for this patient notes him "asking about ivermectin for covid, script for ivermectin requested, worried about s/e of covid vaccination". The notes for this consultation do not show any action taken by the Practitioner. The Practitioner could not explain why.
2. On the next consultation, the patient asked for a Covid 19 test and on this occasion the Practitioner provided a prescription for ivermectin. The Practitioner agreed that he was not following the Borody protocol although, he said that he was unsure whether he had the protocol available to him at the time. However, the Practitioner had earlier said that he would not have prescribed ivermectin except on the advice of Dr Borody, so it seems more than likely that he had the protocol available to him because he prescribed ivermectin.
3. The Practitioner was not able to say why he prescribed ivermectin for this patient and there is nothing in the notes to explain why or that there was a discussion with the patient about the prescription.
4. At a consultation a few days later, the Practitioner again prescribed ivermectin and added a prescription for doxycycline and zinc. The assessment on this day is "covid prevention". The notes do not specify why the drugs are prescribed.
5. Dr Kertesz considered that the Practitioner's conduct fell significantly below the expected standard because there was no plan of management of the patient, no investigations ordered, and no clinical reasoning as to why the drugs were prescribed.
6. The Tribunal finds these Particulars established.

1. This patient told the Practitioner that she had Covid 19 and the notes seem to refer to a positive test on 30 August 2021. The notes continue: "no chest pain; rib pain Panadol takes away for 6-7 hours, not tired lately, no arms/leg soreness cannot smell."
2. The Practitioner provided the patient with a prescription for ivermectin, doxycycline, and zinc.
3. The notes do not record why the Practitioner prescribed those drugs nor any discussion with the patient about them nor that the patient was given a copy of the protocol or the need to measure oxygen levels.
4. When asked about this patient, the Practitioner said that it was "understood" from the prescription that the drugs were for treatment of Covid 19.
5. Dr Kertesz said that the Practitioner's failure to follow a plan of management for the patient, failure to order appropriate investigations, and his lack of clinical reasoning as to why the drugs were prescribed is conduct which falls significantly below the expected standard.
6. The Tribunal finds this Particular made out.

1. This patient's notes read: "wants some ivermectin like wife, more for preventative purposes".
2. No assessment nor plan is contained in the notes. The Practitioner prescribed ivermectin, doxycycline, and zinc. The Practitioner said that no reason for that prescription is noted but said it was "obviously" for prevention.
3. In considering that the Practitioner's conduct fell significantly below the expected standard, Dr Kertesz pointed to there being no assessment of the patient, no investigations, and no reason given for the prescription amounting to a lack of clinical reasoning.
4. The Tribunal finds these Particulars made out.

1. This patient told the Practitioner of her symptoms, that she had a cough which "comes and goes" and was very tired. The notes continue: "sick on 28/08/2021 day 1; jabbed the day; before aches in leg- little energy 5/10, ...hot and cold flushes, no smell; taste ok, no diarrhoea now but before on Sunday, mouth and tongue dry, bit nausea."
2. The Practitioner prescribed the three drugs: ivermectin, doxycycline, and zinc.
3. His assessment was "covid positive". The Practitioner said that this was his "shorthand" for noting a positive objective test.
4. He agreed that there is no note of why the drugs were prescribed but said that the reason is implied.
5. Dr Kertesz pointed to a lack of assessment of the patient or management plan, no investigations nor any clinical or pharmacological reasons given for the prescription as being conduct which fell significantly below the expected standard.
6. The Tribunal finds these Particulars made out.
7. The Tribunal is thus comfortably satisfied that in relation to Complaint 1, Particulars 1, 2, 6, 7, and 11 (save for Patients 25 and 27) are made out and the Tribunal finds that the Practitioner's conduct amounts to unsatisfactory professional conduct.

Improper and Unethical in relation to the practice or purported practice of medicine.

1. The Commission also contends that in relation to Complaints 1 and 3, the Practitioner's conduct was improper or unethical, a reference to s 139B(1)(l) of the National Law.
2. The terms "improper" or "unethical" are undefined in the National Law and Courts and Tribunals have had recourse to dictionary definitions to assist the determination of this issue.
3. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Court considered the dictionary meaning of both improper and unethical. At [31],the Court accepted "improper" as bearing the meaning "not in accordance with propriety of behaviour..." and "unethical" as "contrary to moral precept, immoral..." and "not truly or strictly belonging to the thing under consideration; not in accordance with truth, fact, reason, or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".
4. In Office of Local Government v Toma [2016] NSWCATOD 21, the Tribunal held at [25]:

"Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v UNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes:

The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on."

1. The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139(B)(1) of the National Law, that is relating to the practice of the practitioner's profession.
2. Here, the contention is not what the words mean but how they are to be construed in their legislative context. The Commission contended that if the Practitioner's conduct in relation to Complaints 1 and 3 are established and found not to be in conformity with standards of professional conduct and practice, it could be considered "improper". It was further contended that the word "unethical" implies a more serious category of conduct.
3. However, the context of subsection (l) of s 139B(1) is important. The section sets out the number of ways in which a practitioner's conduct could be considered to be unsatisfactory professional conduct. Subsection (l) commences with the words "any other" which clearly implies some other, different conduct not otherwise captured by the preceding subsections. Perhaps it is important here to note that any one finding pursuant to s 139B(1) of the National Law may, if sufficiently serious, gives rise to a finding of professional misconduct. The Tribunal considers that s 139B(1)(l) does not operate to add seriousness to conduct already captured but rather is intended to deal with separate conduct.
4. In Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [160], Walton J considered s 139B(1)(l) as dealing with "... conduct not otherwise dealt with in s 139B(1)(a)-(k) but that the conduct caught by sub-s (1)(a)-(k) does concern, inter alia, 'unethical conduct'."
5. The Tribunal does not understand that a finding under other subsections in s 139B(1) precludes a finding under subsection (l).
6. The Commission's submissions provide little assistance in resolving this question because they do not identify what of the Practitioner's conduct or course of conduct was improper or unethical.
7. The Tribunal is not persuaded that the Practitioner's conduct found proved in the Particulars of Complaint 1 amounts to conduct which would be regarded by reasonable people of bringing the profession into disrepute.

1. The focus of Complaint 2 is the adequacy of the Practitioner's notes of his consultation with the nominated patients who sought exemption certificates.
2. The Complaint alleges:

"The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he:

i. Contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) ("NSW Regulation")"

1. There are two Particulars of the complaint which are:

"1. The practitioner failed to make and keep adequate records in relation to the issuing of permanent and temporary Covid 19 vaccination exemptions to patients 1-9; 11, 14-15;17-24, including by failing to record:

(a) adequate records of the patient's history, presenting symptoms and diagnosis, contrary to clause 1(2)(a) and (b) to Schedule 4 of the NSW Regulation.

2. The practitioner failed to make and keep adequate records in relation to prescribing of the schedule 4 drug Ivermectin to Patients 25-34, including by failing to record:

(a) adequate records of the patient's history, presenting symptoms and diagnosis, and plan of treatment contrary to clause 1(2)(a), (b) and (c) to Schedule 4 of the NSW Regulation."

1. The contravention concerns clause 6(1) of the Regulations and Schedule 4 clause 1(2)(a)-(c) that is in relation to the obligation to make and keep a record for each patient.
2. Clause 1(2) of Schedule 4 provides

(a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any test performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),

(b) particulars of any clinical opinion reached by the medical practitioner,

(c) any plan of treatment for the patient,

..."

1. Clause 6 of the Regulations provides that the obligation for making and keeping the record is on the medical practitioner.
2. Section 139B(b) of the National Law defines "unsatisfactory professional conduct" to include; "a contravention of a provision of this law or regulations". There was no argument that the s 139B(b) applies to the Regulations with which this complaint is concerned.
3. The Practitioner said that he was aware generally of the requirements for proper record keeping but was not sure he had seen the Regulation. However, he also said that Medicare provides the description of what is required in a consultation and that includes history, examination, investigation, diagnosis, and treatment. He said:

"Although I have tried to correct my deficiencies in medical records subsequent to this investigation by doing audits, by doing CPD and so on. So I do recognise there are deficiencies in my medical records. I've no problems admitting that."

1. Dr Kertesz was asked to comment on the adequacy of the Practitioner's notes and observed that the Practitioner's note keeping was inadequate in respect of each patient to whom the complaint referred.
2. While Dr Kertesz set out in both his written reports and his oral evidence what, in his experience, must be included in a practitioner's note of a patient consultation, the Commission did not rely on his evidence to prove the standard of note keeping. The standard is established by the Regulation. We do not accept the Practitioner's argument that therefore Dr Kertesz's evidence was irrelevant to proof of this issue. In fact, on a number of occasions in his evidence, the Practitioner conceded that applying what Dr Kertesz said constituted a proper note, his notes fell short of that. It must be noted too that while in his evidence Dr Kertesz pointed out what he regarded as deficiencies in the Practitioner's notes for the particular patients, the deficiencies are obvious on the face of the records of each patient consultation to which the complaint referred when measured against the requirements of the Regulation.
3. During the hearing, counsel for the Practitioner contended that Dr Kertesz's evidence about the Practitioner's notes was irrelevant because it did not refer to the Regulation on which the Complaint was premised. That is not strictly correct. During cross examination it was suggested to Dr Kertesz that his opinion was based not on the content of the Regulation but on the guidelines of the Royal Australian College of General Practitioners (RACGP).
4. Dr Kertesz said that the RACGP guidelines mimicked the Regulations as did a number of other sources which provided guidelines for practitioners in proper record keeping.
5. The Tribunal does not accept that Dr Kertesz's evidence is irrelevant to the proof of this Particular.
6. Dr Kertesz said that in his opinion a proper record of the consultation would, in broad, involve making a note of the date, the medical practitioner who had the consultation, the patient's reasons for the consultation, the practitioner's clinical findings, allergies, diagnosis, and plan of management.
7. It was not suggested to Dr Kertesz that his evidence of what the notes should contain was incorrect or incomplete. His evidence about what, in his opinion, constituted a proper record of a consultation was in effect what is prescribed by the Regulations.
8. At a hearing convened pursuant to s 150 of the National Law in December 2021, amongst other topics, the paucity of the Practitioner's notes was raised by the panel. The Practitioner said that following the hearing and the quality of his notes having been brought to his attention, he underwent some Continuing Professional Development (CPD) on this issue. He was asked how, in light of the CPD he had undertaken and the evidence of Dr Kertesz about patient records, his notes would have been different. He said that his records would be far more complete and he would allocate more time to each patient to allow him to make that record. The Practitioner's evidence accepted the force of Dr Kertesz's opinion.
9. The Practitioner said on many occasions that practising medicine in the times of Covid 19 was very stressful, which was no doubt correct. He also said that he felt "pressured" by the Medical Practice to see patients every ten minutes and said that this created a time pressure which hampered his ability to make a proper note. Two matters must be observed. The first is that the Practitioner agreed that he could, if he wished, have seen fewer patients each day to have more time to make comprehensive notes. Secondly, the Practitioner was able to make notes of the patients' reasons for not wishing to have a Covid 19 vaccination and sometimes those reasons were lengthy. It is not easy to understand then why the time did not permit him to identify his diagnosis and the basis on which the vaccine exemption certificate was written.
10. While the Tribunal accepts that consulting patients by telehealth from home may well have presented the Practitioner with challenges, it does not accept that it obviates or excuses him from properly complying with his obligations of adequate note keeping. The Practitioner was taken to each patient's notes and in relation to each, agreed that his note was inadequate although he couched his concessions carefully, saying his note taking was "not ideal" and "could have been better", and that his notes were "light on". The Practitioner then stated "certainly, my notes could be improved, and I've done CPD to address that particular weakness".
11. At a point in his examination on his notes, the Practitioner suggested that the Regulations in relation to record keeping did not apply to telehealth consultations. There was no evidence proffered by the Practitioner to support the assertion. It was suggested to Dr Kertesz that in an "emergency situation that different record keeping standards apply than they do in the ordinary course of events". Dr Kertesz rejected the proposition as do we. The Tribunal does not accept that the regulation for the provision of proper notes did not apply to telehealth consultations.
12. Turning then, by way of example to the notes for Patient 15 for whom the Practitioner provided a permanent exemption certificate, the notes consist of the patient's complaints and concerns. No diagnosis is recorded and under the heading "P." presumably for "Plan", appears "med cert". When taken to this note, the Practitioner was asked why in his clinical opinion, the patient ought to have an exemption certificate. He replied that "it would be anxiety and depression". Clearly no such diagnosis was recorded and the words "would be" in the Tribunal's view demonstrates the inadequacy of the notes because even the Practitioner who made them was not informed of the underlying diagnosis for the provision of the certificate.
13. In relation to Patient 16, in respect of whom the Practitioner provided an exemption certificate, he was questioned about the patient's assertion that she was depressed and had a referral to see a psychologist from her previous general practitioner. He was asked:

"MR ANTHONY BRITT: There's nothing in your medical record that specifies your clinical opinion as to what the confidential conditions are?

DR ANDREW FOONG: No, there isn't.

MR ANTHONY BRITT: You'd agree with me, should've done that?

DR ANDREW FOONG: It would've been ideal to do that.

MR ANTHONY BRITT: Not ideal, it should've done it?

DR ANDREW FOONG: According to the statutory guidelines, yes, now I'm aware of them."

1. As we have already discussed, the Practitioner prescribed ivermectin and other medications for several patients apparently in support of a trial being conducted by Professor Borody.
2. In the Practitioner's amended reply to the Complaint, he admitted this Particular as it related to Patient 26.
3. The record for Patient 25 notes that on 31 July 2021, the Practitioner prescribed ivermectin for this patient and on 6 August 2021, prescribed doxycycline.
4. The note for 31 July 2021 is as follows:

"Subjective

Asking about ivermectin

Asthma

Sinus

Allergies-hayfever

Reacted to aspirin"

1. Nothing is recorded under the headings "objective" or "plan", but under the heading "assessment" the Practitioner has written "script for ivermectin".
2. The note for the consultation of 6 August 2021 has the words "ivermectin enquiry" under the heading "subjective". No note appears under the headings "objective" and "assessment", and under "plan" is written:

"vitamin C 500mg-1000mg vitamin C dose

Vitamin 10000 IU per day

Zinc 50mg 3-4 monthly blocks

Prevention"

1. In his evidence about this patient, the Practitioner said that his prescription of ivermectin and the other medications were in accordance with Professor Borody's protocol. He agreed that there is nothing in his notes which reveals why he prescribed as he did and said that he "usually gave the patients a copy of the protocol" but there is nothing in the note about whether he had given Patient 25 the protocol.
2. The Practitioner said that the patient asked for ivermectin and he prescribed it because it did not seem an unreasonable request and the patient wanted it in case they became unwell.
3. Equally with Patient 27 for whom the Practitioner prescribed ivermectin and the other drugs recommended by Professor Borody, the assessment notes "covid". The Practitioner said that it was usual practice for a patient to provide proof of Covid 19. There is no note in this patient's records of any proof being provided. Nor is there a note to explain why the patient was receiving ivermectin and the other drugs, nor is there a reference to the prescription being in accordance with Professor Borody's protocol, but the Practitioner said it was implied by virtue of the drugs prescribed.
4. Similarly with Patients 28 to 34, the Practitioner's notes do not explain why ivermectin and the other medications were prescribed, nor do they record a discussion with the patients about the protocol, nor that it was a drug trial. Although the Practitioner said it was his practice to have proof of a Covid 19 infection, for none of the patients for whom the Practitioner had recorded a diagnosis of Covid 19 is there any record of there being a positive test result available.
5. As we have said, the Practitioner conceded that his notes in relation to his treatment of Patient 25 were inadequate to the standard provided by the Regulation.
6. To a greater or lesser degree, the Practitioner agreed that his notes in relation to all of the patients to whom Complaint 2 referred were inadequate. The Tribunal agrees and finds this Complaint made out and further finds it amounts to unsatisfactory professional conduct.

"The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has:

ii. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

iii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine."

"1. On the dates and in the quantities set out in Annexure C the practitioner inappropriately self-prescribed drugs contrary to his obligations under:

a. section 11.2.2, and 11.2.5 of the Medical Board of Australia's Code of Conduct (2020);

b. NSW Medical Board Policy 'Guideline for self-treatment and treating family members' (2014).

2. On the dates set out in Annexure C the practitioner inappropriately referred himself to specialist practitioners contrary to his obligations under:

a. section 11.2.2 of the Medical Board of Australia's Code of Conduct (2020)

b. NSW Medical Board Policy 'Guideline for self-treatment and treating family members' (2014).

3. On the dates set out in Annexure C the practitioner inappropriately referred himself for further medical investigations including pathology, ultrasounds and Covid 19 PCR tests contrary to his obligations under:

a. section 11.2.2 of the Medical Board of Australia's Code of Conduct (2020);

b. NSW Medical Board Policy 'Guideline for self-treatment and treating family members' (2020).

4. On the dates set out in Annexure C the practitioner inappropriately wrote medical certificates for himself contrary to his obligations under:

a. section 11.2.2 of the Medical Board of Australia's Code of Conduct (2020);

b NSW Medical Board Policy 'Guideline for self-treatment and treating family members' (2014).

1. The Commission did not rely on Particulars 2 and 4 to the Complaint.
2. The Code of Conduct says that its purpose is to describe what is expected of all doctors registered to practice medicine in Australia. It adds that doctors have a professional responsibility to be familiar with the Code of Conduct and to apply the guidance provided in it.
3. Relevant to this Complaint is chapter 11 of the Code of Conduct, "Ensuring doctors' health", which says:

11.2.1 Having a general practitioner.

11.2.2 Seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and treatment.

....

11.2.5 Not self-prescribing.

..."

1. The "Guideline for self-treatment and treating family members" published by the Medical Council of NSW dated 2 December 2014, refers to the Code of Conduct and notes that it "sets out the expectations of medical practitioners with regards to treating themselves and those with whom they have a close personal relationship". It quotes from the 2014 version of the Code of Conduct in relation to the health of a practitioner which said:

"Section 9.2.2

Good medical practice involves 'seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self- treatment.'"

1. The guideline endorses the Code of Conduct's guidance in relation to self-treatment and says:

"1 All medical practitioners should have their own, independent general practitioner.

2. Medical Practitioners should not initiate treatment (including prescribing) for themselves or members of their family.

3. In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available."

1. As is apparent, there is little if any difference in the language between the 2020 and the 2014 iteration of the Code of Conduct.
2. As the Code says, medical practitioners are expected to practise in accordance with the Code of Conduct.
3. Annexure C to the Complaint sets out the prescriptions written by the Practitioner for himself and the treatment for himself including referrals for tests for himself.
4. There was no dispute that the Practitioner had written the prescriptions and referred himself for tests. That is, of itself, a breach of the Code of Conduct. In his expert opinion, Dr Kertesz said that the Practitioner's self-management and self-prescription fell significantly below the expected standard.
5. During cross-examination of Dr Kertesz, it was observed that one of the medications for which the Practitioner wrote a prescription was Voltaren, which may be purchased "over the counter" and does not necessarily need a prescription. It was suggested that this was not an example of a medical practitioner self-prescribing.
6. Dr Kertesz said:

"... the answer to that is that self-prescribing on a PBS prescription of an over the counter medication is very strange, but as I said earlier, it's not the fact of an over the counter medication, it's the fact that he wrote a prescription for himself. If you're in a solo practice in Cobar, and you get tonsillitis, and you look at your throat, and you've got pustules on your throat, and every other doctor in Cobar is on holidays, writing a prescription for penicillin, assuming you're not allergic to penicillin, is a reasonable thing. But if you're in a group practice, if you're in an area where there are numerous practitioners, the emphasis is - we're not talking about prescribing here. We're talking about not treating yourself. Having a medical practitioner who is independent and can treat - can examine you, can consult, you can consult, can examine you, send you for investigations at arm's length, that's what we're talking about here.

So we're not talking about over the counter medications. For example, [name of drug redacted], ivermectin, doxycycline, azithromycin, clarithromycin and Stemetil are most certainly not over the counter medications. But if you wish, or if you think you require Stemetil or azithromycin or clarithromycin, you shouldn't prescribe it to yourself, because it is counterproductive for your own health."

1. Dr Kertesz said of the caution against self-prescribing:

"... Firstly, there are no guidelines as far as - there's nothing set in stone about self-prescribing. If you wish to do it, you can do it. It is highly not recommended by any statutory body, and it isn't the prescribing itself, other than particular medications, and we go to the S4Ds and the S8s in that statement. It's the concept, Your Honour. It's the concept of treating yourself, because - or treating your immediate family, because you make - you can make very, very poor decisions in treating yourself or in treating your immediate family, which can have catastrophic consequences. That's why it's not recommended that you treat yourself, and I'm pretty sure if you have a look at the Medical Council and Ahpra guidelines as far as that's concerned, it's not outlawed, but it's far from recommended, except in certain circumstances. Those circumstances are circumstances - for example, of emergency or something of those nature."

1. It was suggested to Dr Kertesz that a reason the Practitioner did not seek his own general practitioner for the prescription of a particular medication (which the Practitioner prescribed for himself over a long period) was because it was of a personal nature and in those circumstances asked whether that might be a reason to self-prescribe. Dr Kertesz said that it comes down to correct management, the correct pharmacology, and the correct investigations. He said that if a person is embarrassed to ask their general practitioner, then they can ask for a referral to a specialist in that area.
2. Dr Kertesz was asked to take into account that the Practitioner had been prevented from attending the Medical Practice from which he worked for a period and whether that would cause him to change his view about the degree to which the Practitioner's conduct was measured against the expected standard. He said:

"No, it's still significantly below, because it doesn't change the fact that if he wasn't allowed to go back to Patrick Street practice, had he rang up somebody that he knew or one of the other practices and said, look, it's Dr Foong here and I'd really like to come and see one of the doctors, is that possible, we would put him in tomorrow."

1. Dr Kertesz added that the Practitioner would have had no difficulty finding a practitioner to manage his health.
2. The Practitioner was asked what he would now do differently in light of Dr Kertesz's opinion and said that he would be more aware of the 2020 provisions and said that at the time he was self-prescribing, he was not aware of them although, he said he was aware of the 2014 Code because it had been sent to him by the Medical Council in 2017 in relation to another matter.
3. However, he said that the 2014 Code did not exclude self-prescribing and referred to advice that the practitioner should conform to state and territory legislation. The Practitioner said he was not aware of the Medical Council guidelines for self-treatment from December 2014 and said he was not aware because he had not been sent them by the Medical Council. He added that if it was an important document, he would have expected the Medical Council to send it to him.
4. Whether or not the Practitioner was aware of the Medical Council guidelines, he was aware of the 2014 version of the Code of Conduct which, while not proscribing self-prescribing, is clear in its terms that it is not advised.
5. In his written evidence, the Practitioner said that he now has a general practitioner with whom he consults and he said that one of the reasons for his self-prescription of a particular drug was because he felt uncomfortable in seeking out a doctor from his practice to prescribe it for him. He said he stopped prescribing for himself in November 2023.
6. The Practitioner was asked about self-prescribing at the s 150 Panel hearing conducted in December 2021.

"Dr Haikal-Mukhtar: ...are you on any medications for any medical condition

Practitioner: I'm not on any prescription medications, no.

Dr Haikal-Mukhtar: ...and our standard question is whether you look medically after your own family or yourself, like self-prescribe or prescribe to your family. Do you do any of that?

Practitioner: Well, I don't give myself any prescription medicines. I don't need anything ..."

1. In the Tribunal hearing, the Practitioner was asked about this response to the members of the s 150 Panel and he said:

"DR ANDREW FOONG: Well, at the time I probably wasn't aware I was prescribing myself medications....

Well, at the time I gave an answer, I probably wasn't aware that I was prescribing myself medications at the time. Whether I was consistently doing it or not, I'd have to refer to my prescription record.

DR M COX: So you weren't aware that you were writing prescriptions for yourself?

DR ANDREW FOONG: Well, right at the time, it might have slipped my mind whether I was actually on medicines or not.

MS ALLIE GRAY: Well, you were prescribing the [name of medication redacted] for yourself, weren't you?

DR ANDREW FOONG: Yes, I believe so"

1. The Practitioner's prescribing records show that on 23 September 2021, some few months before the s 150 Panel hearing, he had prescribed for himself as he also had on 28 September 2021. Against that record and against the clear indication that he had been prescribing a particular drug for himself from about 2016, causes the Tribunal some concern for his candour in that it is difficult to imagine that his writing of repeat prescriptions for a drug could have "slipped his mind" when asked directly about it.
2. On this point, the Commission in its submissions urged the Tribunal to consider the Practitioner's credibility. While the written submissions set out at some length the relevant law on the issue of the credibility of a witness, no submission was made directed to the evidence and how, in the Commission's submission, it would cast doubt on the Practitioner's credibility.
3. However, the resolution of the issues to be decided in relation to this matter do not turn on acceptance or otherwise of the Practitioner's evidence.
4. It was argued for the Practitioner that his self-prescription could be characterised as being done in an "emergency situation", that is his inability to attend the practice at which he worked and because of the Covid 19 pandemic. We reject that argument. As Dr Kertesz said, the Practitioner could have approached any other medical practitioner to act as his general practitioner and was not limited to attending the practice where he worked, nor was there any reason offered what impact Covid 19 may have had on his self-prescribing. We note that in relation to at least one medication which he prescribed for himself, he commenced prescribing it in 2016 well before any "emergency" arose.
5. Secondly, it was submitted that the conduct of self-prescribing and referring himself for tests does not fall significantly below the expected standard because most of the self-prescribing was "trivial", being a reference to his prescribing over the counter drugs for himself. This submission is also rejected. The gravamen of the Practitioner's breach of the Code of Conduct lies in the fact that in not conforming to guidelines for doctors not to self-prescribe and not to treat themselves, and in self-prescribing and ordering his own tests, there is no independent consideration of the Practitioner's condition, appropriate investigations, and the appropriate pharmacology. That some of the drugs he prescribed could have been purchased over the counter while others could not, is not to the point. The Tribunal concludes that their prescription and the Practitioner referring himself for tests in the context of the Code and its import, is not trivial.
6. The Tribunal is comfortably satisfied that Complaint 3 is made out and that the Practitioner's conduct in that breach fell significantly below the expected standard. The Tribunal finds the Practitioner guilty of unsatisfactory professional conduct.
7. In relation to this Complaint, the Commission asserts that the Practitioner's conduct is improper or unethical. For the reasons earlier given and having regard to the facts found in establishing this Complaint, the Tribunal is not satisfied that the Practitioner's conduct was improper or unethical.

"The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

i. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration"

"1. The particulars of Complaint One, Two and Three are repeated and relied upon both individually and cumulatively."

1. Professional misconduct does not have a specific meaning. Section 139E of the National Law defines it as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
2. A finding of professional misconduct does not necessarily dictate cancellation or suspension of the practitioner's registration, however, clearly by its terms it speaks to serious conduct.
3. The basis on which the Commission contended that the Practitioner's conduct amounted to professional misconduct was in him providing exemption certificates to patients essentially because they did not want to be vaccinated and without a valid medical contraindication at a time when he ought to have been cautious and circumspect about exempting patients from the requirements, was sufficiently serious to amount to misconduct. Although it was submitted that all three Complaints taken together amount to professional misconduct, there was no detailed submission about how the individual or collective seriousness of the matters found proved would satisfy the legislative definition.
4. The unchallenged evidence of Dr Kertesz was that exemption certificates had serious legal and public health implications. The Tribunal finds that the Practitioner's conduct in providing exemption certificates on what he admitted were bases he knew were not accepted as medical contraindications was serious and he obfuscated the clinical basis for providing the certificates because otherwise they may have been rejected. This conduct in providing the exemption certificates as particularised is, in the Tribunal's view, of sufficient seriousness to amount to professional misconduct.
5. The Tribunal is not persuaded that Complaints 2 and 3, whether considered separately or together with each other and Complaint 1, demonstrate conduct however so much of Complaint 1 as relates to the provision of exemption certificates, is conduct which amounts to professional misconduct.
6. The Practitioner elected to conduct the hearing in two stages, that is the first to determine whether and to what extent the Complaints are established and the second stage to determine what protective orders should follow.
7. The further hearing of this matter will be adjourned to a date to be agreed.

(1) The Practitioner is guilty of unsatisfactory professional conduct and of professional misconduct.

(2) Adjourn the proceedings to a date to be agreed for consideration of protective orders.

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