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[2014] NSWCATOD 29
NCAT Occupational
2013-07-19
Boland AM
Original judgment source is linked above.
Introduction 6The practitioner is a 51 year old woman who is a very experienced practitioner (nurse and midwife). She was first registered in 1987. At the date of the hearing she was engaged in the practice of nursing, on a casual basis through an agency, at a number of private hospitals including the Mater Private Hospital, North Shore Private Hospital, Liverpool Private Hospital, Hurstville Private Hospital, Strathfield Private Hospital and Nepean Private Hospital with the majority of her recent work being at the Mater Private Hospital and North Shore Private Hospital. She remains on the casual staff of Levity Health, Bondi Junction but says she now rarely works at that facility. 7The HCCC agitate two complaints under the provisions of the Health Practitioner Regulation National Law No 86a ("the National Law") against the practitioner (unsatisfactory professional conduct and professional misconduct). The gravamen of both complaints is that the practitioner was involved, with a former medical practitioner, who was, at all relevant times, unregistered in NSW, in providing alternative cancer treatments to patients in circumstances where she knew, or was recklessly indifferent to the fact, that the former medical practitioner was not registered, or she was not supervised in the administration of alternative cancer treatment. The particulars relied on in support of the complaints also allege that the practitioner collaborated with the former medical practitioner to illegally import chemotherapy drugs into Australia, and further she procured another chemotherapy drug for administration to her brother without her administration of the drug being supervised by a registered medical practitioner. 8The circumstances which resulted in the complaint to this Tribunal, and the manner in which the matter proceeded, involve unusual features. 9In about 2007 the practitioner's brother, Mr J C, ("Patient A"), a solicitor, was diagnosed with Non Hodginson Lymphoma ("NHL") Stage IV. He was initially under the care of an oncologist in the Central Coast area of NSW. Later he intermittently consulted Professor Martin Tattersall, AO ("Professor Tattersall"). Patient A sadly died on 24 December 2012. 10Patient A did not establish a rapport with his original oncologist, and sought alternative, or non-orthodox, treatment for his cancer. The chosen treatment was primarily Insulin Potentiation Therapy ("IPT"). The treatment is described more fully later in these reasons. It is sufficient at this stage to say, it involves the administration of insulin to the patient, and at a "therapeutic moment", the administration of chemotherapy drugs at a much smaller dosage than in conventional chemotherapy. He also received intravenous vitamin therapy, another alternative cancer treatment. 11It is not illegal for a registered medical practitioner to administer IPT in NSW. However, the Cancer Council Victoria, in its publication "Complementary and alternative cancer therapies", describe giving of "chemotherapy in doses that have not been scientifically proven to help" as "alternative cancer therapy". The Council stress that some alternative treatments can very dangerous to use. The Council also warns alternative therapies may be promoted "by people who do have recognised medical qualifications but they are not using them in the right way or they may no longer be registered. The American Cancer Society refer to IPT in these terms: Despite individual reports, there are no published scientific studies available showing that IPT is safe or effective in treating cancer in humans. IPT may have serious side effects. 12In 2008, at the request of Patient A, the practitioner agreed to travel with him to Chicago, USA and later to Mexico whilst he underwent IPT. The practitioner asserts she learnt from the Chicago IPT medical practitioner's practice manager, and the IPT practitioner himself, that an IPT practitioner had, or was, to commence practice in Australia. 13The practitioner found details of the IPT practitioner, Mr Chittoor Krishnan, ("Mr K") on an IPT website on the internet and made contact with him. 14Mr K is of Indian heritage. He was born in 1936. He studied medicine in Madras, and practiced in Melbourne as a general practitioner until 1995, a period of approximately 30 years. His wife was also a medical practitioner. They had two sons. One son, Mr R K, is an international pilot. He lives in Sydney. 15In 1995 Dr K (as he then was) suffered a stroke ("CVA") and ceased full time practice. In 2000 he voluntarily ceased his registration in NSW. He appears to have resumed practice briefly in Victoria after this date. In 2003 Mr K's wife died, and he suffered a decline in his mental health. He was scheduled briefly under the provisions of the Victorian mental health legislation, and asserts he ceased practising as a general practitioner in June 2003. 16In 2003 Mr K was diagnosed as suffering borderline personality disorder, and CVA related dementia, although the latter diagnosis has been put in some doubt by subsequent neuropsychological testing. 17A Financial Management order in respect of Mr K was made in Victoria in 2003, and a final Financial Management order was made by the NSW Guardianship Tribunal in 2009 in respect of his financial affairs. Mr RK is the current financial manager under that order. 18Mr K lives with his son, Mr RK, when he is in Sydney. Mr K has, since 2003, spent considerable periods of time overseas. In 2007 Mr K asserts he undertook a two week course in IPT in Vienna. 19The practitioner asserts, contrary to the HCCC claim, that although her brother wanted Mr K to administer IPT to him, that he did not receive treatment from him, nor did he receive IPT from her. She did however become involved with Mr K, but she asserts her involvement was as his employee or assistant, although she did not receive wages. While the practitioner concedes she wrote emails to Mr K in which certain chemotherapy drugs are named, she denies that she requested or collaborated with Mr K to bring chemotherapy drugs into Australia on two occasions (2009 and 2010). 20Three other patients, all of whom were suffering cancer, came into contact with the practitioner and/or Mr K during the period 2009 to March 2010. 21Mr P T ("Patient B") lived in Tasmania where he was diagnosed with testicular cancer. He underwent two courses of chemotherapy in Tasmania but did not complete the second course and refused a third course of chemotherapy. He contacted Mr K and sought IPT treatment. 22The practitioner does not deny she administered IPT to Patient B, but says she did so with, and under the supervision of, Mr K. Where the treatment occurred is in dispute. 23Mr RK became aware of Patient B's treatment when his mother telephoned Mr K to complain about his care following Patient B's hospitalisation at Campbelltown Hospital. Patient B, or his mother, did not cooperate with requests by the HCCC to give evidence in these proceedings. His mother, when contacted by the HCCC in November 2010, said Patient B was very ill. 24Ms A A ("Patient D") is a lady who lives in Japan. Mr K asserts Patient D told him that she is Japanese. She was born in Poland, has lived in the UK, and now lives in Japan. Patient D was diagnosed with breast cancer by ultrasound in 2009. She underwent IPT in Vienna with two medical practitioners trained in IPT. She contacted Mr K seeking IPT in Australia during a three-week holiday in this country. 25The practitioner asserts she drove to an address at Bridge Street, Westmead, and that, under the supervision and at the direction of Mr K, she administered intravenous vitamin C, to Patient D, but not IPT. Patient D asserts she received intravenous vitamin C therapy at a friend's home at Glebe. 26Mr K asserts that the practitioner administered IPT to Patient D at the patient's sister-in-law's home while he "supervised" to advise the "therapeutic moment" to insert the chemotherapy drugs. Mr K asserts the practitioner supplied the insulin, chemotherapy drugs and equipment. He also asserts he may have treated Patient D on another occasion. 27The fourth patient named in the Complaint, Mr M B, ("Patient C") was a UK national who was living temporarily in Australia with his wife. He too was diagnosed with testicular cancer and has since died. It is asserted that he underwent IPT at Edgecliff administered by the practitioner. 28The practitioner was employed, on a casual basis, by Mr Paul Ameisen ("Mr Ameisen") at his practice known as the "Vita Centre", Edgecliff from about March 2008 until about October 2009. Her duties at the Vita Centre principally involved administration of intravenous vitamin therapy to patients. 29Mr Ameisen is a naturopath who was formerly a registered medical practitioner. He was removed from the register of practitioners in January 2009 by order the Medical Tribunal of NSW. Mr K, Patient A, Patient C, and the practitioner were patients of Mr Ameisen's practice at the Vita Centre. Patient B was referred to the Vita Centre in December 2009. 30The practitioner, Patient A, and Patient C each subsequently became patients of Dr Lyn Tendek ("Dr Tendek") at her practice conducted at the Bondi Junction Medical Practice ("BJMP"). Patient B also consulted Dr Tendek in December 2009. Dr Tendek provided Patient A with prescriptions for chemotherapy drugs (Bleomycin and Cyclophosphamide), and she provided prescriptions in the name of the practitioner for vitamins and other medications. The practitioner asserts the vitamins and medications were for use by her and her brother. The vitamins and medications prescribed were supplied to Dr Tendek's rooms by a company, Biological Therapies Pty Ltd. ("Biological Therapies"). Dr Ian Dettman ("Dr Dettman") is the Managing Director of Biological Therapies. Dr Dettman is a Doctor of Philosophy and a scientist. 31Emails provided to the HCCC by Mr RK from his father's computer disclose a chain of email correspondence between the practitioner and Mr K, including correspondence about the purchase of various chemotherapy drugs overseas. 32It is the practitioner's position that, until she had a telephone conversation with Mr RK on 1 March 2010, she believed that Mr K was a registered medical practitioner in NSW. It is also the practitioner's position that she administered vitamin therapy to her brother and herself under the supervision of Dr Tendek, or she provided intravenous vitamin C to her brother in her capacity as a carer.
The complaint and conduct of the proceedings 33A Complaint, dated 22 December 2011, was filed by the HCCC in the NMT on 6 March 2012. On 26 April 2012 the HCCC was ordered to file an Amended Complaint and provide further and better particulars of the Complaint to the practitioner by 19 July 2012. Time for compliance with that order was extended on 23 July 2012 to 6 August 2012. Although the hearing was listed to commence on 6 December 2012 an application was made by the practitioner to vacate those dates, and the matter was subsequently listed to commence in March 2013. Those dates were vacated on 15 February 2013. The matter was then listed for hearing in July 2013. The Amended Complaint was further amended on 26 November 2013 when the NMT granted leave to add a further particular (Particular Seven) to Complaint One of the Complaint. Our reasons for granting leave to amend are set out later in these reasons. On 4 December 2013 the HCCC withdrew Particular Six of Complaint One. 34To aid understanding, and for convenience, a copy of the Further Amended Complaint is annexed to these reasons and marked Appendix A. 35A number of directions hearings were held to prepare this matter for hearing. The practitioner was legally represented at all directions hearings as was the HCCC. The initial time estimate of eight hearing days was modified and the matter was listed for five hearing days. That estimate was, unfortunately, not accurate. 36Factors which impacted on the length of the hearing included first, a dispute about whether or not Mr K should be excused from attendance pursuant to a summons to give evidence issued by the Tribunal. The Tribunal heard from Dr P Wijeratne, ("Dr Wijeratne") Mr K's treating psychiatrist about his current psychiatric health. Mr K expressed suicidal ideation in a consultation with Dr Wijeratne on 16 July 2013, and Dr Wijeratne opined Mr K was at risk of significant harm if compelled to attend the hearing. The HCCC did not pursue calling Mr K in these circumstances, but sought to rely on correspondence from him to the HCCC and his affidavit affirmed on 17 June 2013. The Chairperson admitted the relevant correspondence and affidavit and gave separate oral reasons for so doing. 37Also in dispute was the accuracy of an interview with the practitioner conducted by investigating officers of the HCCC under s 34A of Health Care Complaints Act 1993 (NSW) ("the HCC Act"). It is not in dispute that the practitioner refused to allow the interview with investigating officers of the HCCC to be recorded. The interview was conducted with an assistant typing a record of interview on a laptop computer as questions were asked by the investigating officers and answered by the practitioner who was accompanied by her then solicitor, Mr Stephen Sloan ("Mr Sloan"). However, part of the computer record was not "saved" with about an hour of the record of interview being "lost". A "reconstruction" of the interview was prepared by one of the investigating officers, Ms Amanda Hadley ("Ms Hadley"), using the computer records, a list of questions and Mr Sloan's notes, but it is not accepted by the practitioner as a true and accurate record of that part of the lost part of the interview. Indeed, the practitioner disputes the accuracy of the record of interview in its entirety. 38The reasons for the admission of Mr K's affidavit, and other matters arising during the hearing, resulted in the delivery of three separate oral reasons. 39Dr Tendek's evidence, which is discussed below, resulted in an application by her to be legally represented, and for her counsel to take any necessary objections to questions the answer to which may have led to self-incrimination, or were otherwise directed to the propriety of her conduct. This was, in part, because s 128 of the Evidence Act 1995 (NSW), although now applicable under the NCAT Act, was not available under the National Law at the time of the hearing. Leave was granted, without objection by either party, for Mr S Barnes of counsel to appear on Dr Tendek's behalf. Mr Barnes was excused at the completion of Dr Tendek's evidence, but he was again granted leave to appear throughout the course of final submissions. Mr Barnes sought to make submissions as to how the Tribunal should deal with Dr Tendek's evidence. His right to make submissions was opposed by Ms Sharp of counsel on behalf of the HCCC. Mr Barnes was granted leave to file written submissions in support of the position agitated for his client. 40Due to his unavailability in Australia, evidence was taken from Dr Dettman by telephone from Japan. 41As Patient D, who is now living in Japan, was not available due to her medical needs in July 2013. Her evidence was delayed and heard by the Tribunal using Skype technology on 4 December 2013. The practitioner's sister, Ms J C, who was undergoing medical testing in December 2013, also gave her evidence via Skype.
Background 42The following matters, unless noted by us to be an allegation, were accepted as facts established to the requisite civil standard on the evidence before us. This background information is more detailed than would normally be necessary in reasons for decision. But we have formed the view it "sets the scene". More relevantly, it is necessary to aid understanding of the inferences the Tribunal was asked by counsel for the HCCC to draw at the conclusion of the evidence to establish the particulars pleaded in the two complaints. 43In 1987 the practitioner completed her general nursing training at Bankstown Hospital. She obtained registration as a general nurse on 27 March 1987. In 1991 she obtained a certificate in Midwifery and on 1 August 1991 was first registered as a Midwife. In 1993 the practitioner completed a Bachelor of Health Science (Nursing) degree. 44In 2007 Mr K is asserted to have undertaken a course in IPT in Vienna, Austria. 45In 2008 Mr K sought to be re-registered as a medical practitioner in NSW. 46In 2008 Patient A was diagnosed with NHL Stage IV. His oncologist is asserted to have refused to treat him if he underwent any form of alternative treatment. It is asserted Patient A researched alternative cancer treatments and located a doctor, [Dr Steven Ayre], on the internet, who administered IPT. 47By email dated 17 June 2008 Ms Rebecca Ayre ("Ms Ayre") Office Manager, Contemporary Medicine, Burr Ridge, IL, USA wrote to the practitioner advising that Dr Ayre could see Patient A for the administration of IPT except between 26 July and 2 August. She also said: As luck would have it, there is a newly trained IPT physician who has plans to open a practice in Sydney. His email address is [email address]. His name is Dr Chittoor Krishnan and he just finished training with Dr. med. Thomas Kroiss in Austria, so he has not opened up his practice yet in Sydney. Perhaps he will have established a practice by the time your brother is in a position to continue with care back home. Either way, feel free to email him and apprise him of your situation 48The practitioner alleges Dr Ayre advised her that Mr K was setting up to practise IPT in Australia. The practitioner provided her mobile phone number to Mr K on 20 June 2008. 49In about June 2008 Patient A and the practitioner travelled to Chicago where it is asserted that Patient A received IPT from Dr Ayre. 50On 19 June 2008 the practitioner emailed Mr K advising her brother had NHL Stage IV and that he was currently being treated by Dr Ayre in Chicago. The email, which is annexed to the practitioner's statement, is unsigned and contains no further information. Mr K responded to the email on the same day and asked to be provided with details of Patient A's oncologist so that he "could liase [sic] with him and consult". He advised he had recently secured his diploma from Vienna. 51The practitioner again emailed Mr K on 20 June 2008 when she explained Patient A was "receiving IPT from Dr Ayer [sic] in Chicago". She also explained that Dr Ayre had recommended Patient A see an oncologist in Chicago to commence additional treatment. Finally, she noted that Patient A did not have a treating oncologist in Sydney because his former oncologist had refused to treat him if he sought alternative forms of therapy. 52In early July 2008 the practitioner travelled to Mexico with Patient A who commenced IPT supervised by a Dr Garcia. On about 4 July 2008 the practitioner returned to Australia. Patient A remained in Mexico to undergo further IPT returning to Australia on about 28 July 2008. Patient A asserted in a consultation with Professor Martin Tattersall ("Professor Tattersall") in August 2008 that he continued treatment in Mexico until 27 July 2008. 53On 6 August 2008 Patient A consulted Mr Ameisen at the Vita Centre, Edgecliff, NSW. At that time Mr Ameisen was a registered medical practitioner and naturopath. The Vita Centre offered natural therapies and performed intravenous vitamin therapy for patients. Although summons to produce documents in respect of Patients A, B and C were served on Mr Ameisen he did not produce any documents. Mr Ameisen asserts all his records from the Vita Centre are stored on his farm at Mudgee, and that despite searches he is unable to locate any of the relevant records. 54The practitioner asserts that, after she made contact with Mr K, on 11 August 2008 he suggested a meeting with herself and Patient A. Mr K arranged for the practitioner to bring her brother's medical records to a meeting which took place, at Mr K's request, in a café in Bondi Junction. The practitioner asserts Mr K reviewed Patient A's records and spoke knowledgeably about IPT. The practitioner asserts Mr K asked her to find rooms for him and nurses to assist with his practice. The practitioner also asserts Mr K asked her to help out until he could engage other nurses. When advised that Patient A had an appointment with Dr Ameisen (as he then was) the following week, Mr K said he would attend with him at that appointment. 55On 11 August 2008 Mr K sent an email to the practitioner. The email said: Y must have lots of expenses going to chicago, mexico etc y may pay what y can I am sure y will recommend me later to u r othger contacts dr krish [original spelling] 56On 12 August 2008 Mr K sent an email to his son, Mr RK, in which he advised he would be treating his first cancer patient, who was referred to him by doctors in Chicago and Mexico, with IPT and would charge $600 per treatment. 57Patient A saw Mr Ameisen at the Vita Centre on 14 August 2008. He was accompanied by the practitioner and Mr K. Mr Ameisen referred Patient A to Professor Tattersall. 58Mr K emailed the practitioner on 15 August 2008 at 7.50am. He explained to the practitioner that "as y r brother recovers from therapeutic moment", he wanted her to have a plate of fruit for Patient A to eat. He also said "this isfor all p;atients in future" [original spelling]. 59Mr K emailed the practitioner at 5.44 pm on 15 August and said: Is [Patient A's first name] hving IPT golmorfrfows pl let me know Krish [original spelling] 60A further email was sent by Mr K on the evening of 15 August 2008 at 7.34pm when he explained he had the flu and asked if he could "could defer treatment to [Patient A's first name] by fews days". [original spelling] 61Mr K emailed the practitioner on 18 August 2008 and advised he had a specialist medical appointment at 9am "on Wednesday". He enquired whether it would be suitable to treat Patient A at 1pm that day. He also provided advice about food for Patient A prior to the treatment. 62Mr K emailed the practitioner the following day (19 August 2008) seeking to confirm that Patient A was having treatment the following day. He asked the practitioner where the treatment would be administered. 63Mr Ameisen saw Mr K as a patient and on 20 August 2008 referred him to Dr Wijeratne for "evaluation of depression". Dr Wijeratne recorded in his clinical notes of 20 August 2008 that Mr K "wishes to practice IPT as a medical practitioner if allowed, if not, ... want to work with Paul Jamieson [semble Ameisen] at 136 New South Head Road, Edgecliff". 64Professor Tattersall, who saw Patient A on 22 August 2008, wrote to Mr Ameisen (with a copy of his letter to Patient A). At the commencement of his letter Professor Tattersall set out a history of Patient A's treatment. Professor Tattersall recorded: Has received treatment with insulin potentiated chemotherapy in Chicago - Adriamycin, Vinblastine, Dacarbazine and Bleomycin, treatment continued in Mexico, now taking Cyclophosphamide 50mg daily six times a week and Methotrexate 7.5mg on Fridays. Due to start iv vitamin c ? further treatment 65Between 16 to 20 August 2008 Mr K sent daily emails to the practitioner. The practitioner asserts she did not read the emails because she was at the snow. Further emails were sent by Mr K to the practitioner between 27 to 30 August 2008 advising of an appointment with a Dr Laverin, oncologist, at Bondi Junction. Mr K asserted in an email that he had told Dr Laverin "about what chemo i need. both of us wi;ll ;be there to treat y r brother". [original spelling and punctuation] 66On 1 September 2008 Mr K emailed the practitioner. He noted that she and Patient A had not attended the appointment he had arranged. Mr K concluded the email sayng "pl.lret me know whether y r keen to have treatment r not". [original spelling] 67On 2 September 2008 Mr K, Patient A and the practitioner attended an appointment at Bondi Junction with Dr Laverin. The practitioner asserts that Dr Laverin referred to Mr K as "Doctor". Dr Laverin is also asserted to have advised he was unfamiliar with IPT, and recommended standard chemotherapy treatment for Patient A. He is also reported to have said he was unsure whether his insurance covered procedures at his rooms. That evening Mr K sent an email to the practitioner. The practitioner asserts she did not read the email. The email is headed "don't worry about fruitcake onco in bondi junction". It is signed "Dr K". In the body of the email Mr K said: any way don't worry i shall get enough chemo to last 6 months. 4 i return pl try to find an onco r whom i can chat and try to convince them. pl send email saying what y have and what y need [original spelling] 68The practitioner asserts that she had a conversation with Mr K after the appointment with Dr Laverin in which he informed her that Dr Laverin was not "keen" to give IPT, however, another oncologist, Dr Balafas, was "keen", but was away from Sydney. Mr K is reported to have advised the practitioner he was going to the US to see Dr Ayre for an update. He is also asserted to have asked the practitioner to tell him what natural medicines Patient A needed and that he would bring them back to Australia. 69On 7 September 2008 Mr K emailed the practitioner. He advised he was going to India and should return to Australia by 11 October. He then said "by the time I should beready to join paul amieson [sic]. Could y pl indicate what y have and what y need". [original spelling] 70On 8 September 2008 the practitioner responded to an email from Ms Rebecca Ayre. She recorded that she had been in contact with Mr K and that he could not give a definite date for his "set up". She also reported "in the meantime" Patient A had arranged to have intravenous Vitamin B17 as they had found a doctor who provided this therapy as well as intravenous Vitamin C therapy. 71On 10 September 2008 Dr Wijeratne wrote to Mr Ameisen. Dr Wijeratne noted that Mr K appeared compliant with his medication and he had agreed not to commence practice as an IPT practitioner. Dr Wijeratne noted Mr K planned to seek re-registration and that he, Dr Wijeratne, would advise the NSW Medical Board that Mr K should be placed under the supervision of the impaired registrants' panel. 72On 13 September 2008 Mr K wrote from Banaglore, India to Dr Wijeratne. 73On 15 September 2008 Mr K emailed the practitioner. The heading on the email is "r y serious about chemo". The text of the email is: i will be leaving india for syd earlyn oct. do y want mev to get supply of chemo. I can treat [Patient A's first name] at his home. Dr K [original spelling] 74The practitioner asserts that she did not read this email as it went to a gmail account she had used whilst overseas but was no longer using. She asserts this was the first time Mr K offered to obtain chemotherapy drugs overseas for Patient A. The practitioner says, about 9 October 2008, she did read the email, and she then rang her brother to discuss its contents. The practitioner asserts her brother responded: Well he's a doctor, if he wasn't allowed he wouldn't have offered. Dr Krishnan has told me before that he brings medications in and Customs know him 75On 22 September 2008 Ms George Phillips, psychologist, carried out a neuropsychological assessment of Mr K who, by that time, had returned to Sydney. She opined, based on the test results, that "[Mr K's] cognitive deficiencies in visuospatial and executive function are considered most consistent with residual cognitive sequelae of the right frontal/parietal infarct arising from his CVA of 1995". 76The practitioner asserts she had a telephone conversation with Mr K on 14 October 2008 when, amongst other matters, he advised her that he had been unable to obtain medications for Patient A because the supplier had "run out". 77On 22 October 2008 Mr K applied to the NSW Medical Board to be re-registered. 78The practitioner asserts that she had a telephone conversation with Mr K on or around 30 October 2008. The practitioner asserts Mr K told her there was a "hiccup" with his registration and:- a problem with immigration, they can't find paperwork I filed. In Australian government departments the right hand doesn't know what the left hand is doing. But it should only take a week or two to resolve don't worry about [Patient A] we have plan B. 79The practitioner asserts Mr K told her "plan B" was that he would use his "onco friend in Bondi Junction, Dr Balafast" or his "Onco friends in Strathfield" to do the treatment for [Patient A]. The practitioner asserts in a further telephone conversation with Mr K on 3 November 2008 he told her "I have good news, the paperwork with immigration is all good, I can practise freely now". 80On 3 December 2008 Dr Wijeratne wrote to the NSW Medical Board expressing reservations about Mr K's capacity to practise medicine. 81The NSW Medical Board wrote to Mr K on 13 January 2009 and advised his application for re-registration was rejected. 82On 13 January 2009 Patient A saw Professor Tattersall. Patient A did not see Professor Tattersall again for a period of approximately 18 months. 83On 28 January 2009 the Medical Tribunal ordered that Mr Ameisen's registration be cancelled and a period of not less than 18 months elapse before he could apply for re-registration. 84On 18 February 2009 Mr P T ("Mr T") emailed Mr K seeking information about IPT treatment for his partner who was suffering from cancer. On 19 February 2009 Mr K first responded to the email. He said: the traditionalist r always against anything new. they want to guard theirv territory. in my view IPT is worth a try. i am treating a nurses brother here in Sydney with good response.[ original spelling and punctuation]. 85On 21 February 2009 Mr K emailed Mr T suggesting he should contact the practitioner, whose brother he was treating, and provided her mobile telephone number. 86On 22 February 2009 Mr K again responded to Mr T's email. He said "i am treating a nurses brother her in ingleburn..the sister is very good at iv therapy. i can give the treatment here." [original spelling and punctuation]. 87On 26 March 2009 Dr Wijeratne made a file note of a conversation with Dr Paul Saeed ("Dr Saeed") about Mr K. Dr Saeed is a psychiatrist whom Mr K had consulted. Dr Wijeratne noted Dr Saeed said: 6 wks ago. Administered IV .4u/kg of insulin "Therapeutic moment" [indecipherable] cytotoxic anti cancer drug IV with RN (sister of pt). Pt John in Campbelltown. How to do 1/10 of per [indecipherable] done IV. Taught the RN to administer. 88On 8 May 2009 Dr Saeed wrote to Dr M K Stenthil, 48 Highgate Street, Strathfield. Dr Saeed commenced his letter noting the aim was "to update you on the assessment and management of [Mr K] [described as "Dr"]. He expressed the view that because of Mr K's psychiatric condition he posed a serious risk to patients. In the second paragraph of his letter Dr Saeed said: During my assessment [Mr K] disclosed to me his recent involvement in patient care using Insulin Potentiation Therapy. He stated that in February 2009 he had been involved in the care of a patient named John at Campbelltown who suffered from a grade IV Non-Hodgkin's Lymphoma. He had supervised the administration of intravenous insulin at 0.4U/kg body weight to this patient. He described how at a particular "therapeutic moment" subsequently he supervised the administration of a cytotoxic drug at 1/10th of the usual dose. 89In about March 2009 Dr Tendek commenced working on a part time basis at the Vita Centre. She also practised from her rooms at the BJMP. 90From around March 2009 until November 2009 the practitioner was employed at the Vita Centre. The practitioner was employed to administer intravenous vitamin therapy under the supervision of Mr Ameisen, or other employed registered medical practitioners. 91On 3 March 2009 Patient C, who had been diagnosed with metastic testicular cancer, and who was a patient at the Vita Centre where he received intravenous vitamin therapy, had a portacath inserted at St Vincent's Hospital, Darlinghurst. He was English and in Australia with his wife on holiday at this time. Patient C died on 29 May 2010. 92On 14 April 2009 Patient A, acting in his capacity as a solicitor, wrote to Dr Wijeratne requiring he provide him with copies of all reports, assessments, tests and diagnosis in his possession in respect of Mr K. 93On 24 April 2009 Mr K sent an email to the practitioner. He said" a patient [first name] from overseas will be in Sydney in may. she needs1 treat of ipt. can we do it at edgecliff around 13th may i have given y r cell to her she may contact y soon. [original spelling and punctuation] 94On 25 April 2009 the practitioner responded to Mr K. She said: I'm available if you want me to assist you under your supervision with your patient. I can come to either your place or your patients place. neither my place or Paul's is an option. More than happy to help you. Just let me know. [original punctuation] 95Mr K asserts that he and the practitioner saw the patient referred to in his email of 24 April 2009 at her sister in law's house. Mr K does not disclose the location of the sister in law's house in his affidavit. He deposes that he saw the practitioner weigh Patient D and that he observed an IV stand and a fluid bag which were not supplied by him. He deposes that he also saw the practitioner draw up a fluid from a vial marked "insulin" and inject it into Patient D's arm. Mr K deposes that he observed the patient, and at the "therapeutic moment", he saw the practitioner insert another syringe. He also deposes that the practitioner stated she had "mixed the chemo drugs". Mr K denies giving the practitioner the chemotherapy drugs. He deposes he monitored the patient for about one hour, and before he left the house, that the practitioner gave him $300 or $400 in cash. He says he may have seen the patient on another occasion. 96The practitioner asserts she and Mr K saw patient D at Westmead on 14 May 2009. She asserts Mr K and Patient D were already at the home when she arrived. She asserts Mr K supplied all equipment and medication. She states the vitamin C was on a bench by the window and Mr K gave her the drip bag and the giving set. The practitioner asserts, in a notebook provided by Mr K, she saw the patient's written consent and examination notes made by Mr K. She asserts there was a medication order with current date, time and route for the vitamin C dose. The practitioner asserts she made appropriate notes in the book provided which was retained by Mr K. She denies seeing any money or there being any discussion about money. The practitioner asserts, on several occasions, Mr K had told her he would pay her but had to wait until his practice was established first. 97Patient D states she saw Mr K on two occasions whilst she was in Australia. In her oral evidence she stated she saw Mr K at a friend's home at Glebe NSW. Patient D disputes she received IPT and says she received intravenous vitamin therapy from Mr K administered by the practitioner under his supervision on one occasion, and on another occasion, by another nurse. Patient D asserts she paid $300 for the treatment. 98It is asserted that in May 2009 Mr K went overseas and did not return to Australia until February 2010. 99The practitioner asserts that, in or around mid May 2009, whilst working a the Vita Centre she had a conversation with Patient C. She asserts Patient C was there to have his regular intravenous vitamin treatment. She asserts that Patient C referred to having "come across" an IPT practitioner, Mr K, on the internet. The practitioner asserts she did not tell Patient C she knew Mr K. 100The practitioner asserts at one of Patient C's subsequent visits to the Vita Centre he asked her why she had not told him she knew Mr K. 101On 21 May 2009 the practitioner sent an email to Mr K headed "[Patient C's given name] pathology". In the text of the email the practitioner said "Here is [Patient C's first name] pathology for your review. Just let me know the outcome asap as to how you want to proceed". 102Records produced from the Pharmaceutical Benefit Scheme ("PBS") disclose that, on 26 May 2009, the late Dr Archivides Kalakerinos, ("Dr Kalakerinos"), who was then a part time medical practitioner at the Vita Centre, wrote a prescription for Patient A for Bleomycin Sulfate 10. Bleomycin is a chemotherapy drug. It is also known as Blenoxin. 103On 21 June 2009 Mr K sent an email headed Re:Fw [Patient C's first name] Pathology" to the practitioner. In the text of the email Mr K said: In am in pohilipes till mid oct. then tom india 4 vi return to dydney n jan. there r more enquries from usa and other vplaces, if y need any chemo pl let me know. I shall bring as much as possiuble. all going well y can work for me and my dr, friend, [original spelling and punctuation] 104On 28 June 2009 at 5.10.10 pm (according to one email before the Tribunal, and at later times, including 7:40:10 pm, and 9.40 pm in other copies of the same email) the practitioner responded to Mr K's email dated 21 June 2009. She said: I hope all does go well so I can continue to work for you. I think you would benefit by the following chemo drugs. Cyclophosamide, adramycin,[sic] vincristin, vinblastin, methyltrexate, [sic] cisplatin, etoposide, bleomycin. Thank you. [original spelling]. 105On 30 June 2009 Mr K emailed the practitioner and asked if she heard from Patient C's wife about Patient C. The practitioner responded by email on 24 July 2009 noting she had "Just received your letter". This letter was not produced by the practitioner. She then set out information about Patient A's attendance at the Vita Centre and his other medical treatment including DMSO and DSA. 106On 12 August 2009, whilst working at the Vita Centre, Dr Tendek wrote a prescription for Patient A for Bleomycin. 107On 28 August 2009 Mr K emailed the practitioner and advised a patient, "PT" (Patient B) from "Tassie" may ring her. Mr K noted that Patient B had "test ca" [testicular cancer] with secondaries" and wished to try IPT in Sydney. 108On 29 September 2009 Mr K sent an email to the practitioner. He wrote: Thanks for u r call. i did give y r contact details to vince to get info about IPT. now i got a lady GPin styrathfield,. her husband a good friend of mine GP himself .......i spoke to her about IPT and see is keen to help ......i am going to mindia toi see my mum then usa for 6 weeks to visit IPT clinic 4 i return to oz either end jan r early feb. pl send [Patient A's first name] sirname. i need his help when I return. whatever chemo y need between now and jan pl let me know. k [original spelling and punctuation] 109In late October early November 2009 the practitioner ceased employment at the Vita Centre. 110On 4 November 2009 at about 10.33am Dr Tendek saw Patient A at BJMP. She noted that Patient A "went OS and did IPT with chemo in US and Mexico; Vit B 17 IV also". She also noted he was seeing Professor Tattersall and "having IV vit C". Dr Tendek wrote a referral letter to Professor Tattersall. She noted "Will set up patient account with Biological therapies and order IV vit C direct and EDTA". EDTA is a chelation agent used to rid heavy metals from a patient's body. 111On 4 November 2009, at about 11.30am, Dr Tendek saw Patient C at BJMP. She recorded Patient C's history of testicular cancer and his treatment, and noted he was seeing Professor Tattersall. She also noted "having IV vit C and B 17". 112Between 10 November 2009 and 29 July 2010 invoices addressed to the practitioner from Biological Therapies disclose the purchase of vitamin B, vitamin C, EDTA plus vitamin C, Alpha lipoic acid (ALA) Glutathione and IM Vitamin D3. The invoices which range over a nine month period required payment of $12,859. Prescriptions for the medications were written by Dr Tendek and Dr Richard Moore ("Dr Moore"). Dr Moore practised at Levity Health were the practitioner is employed. 113On 5 November 2009 Dr Tendek referred Patient A to Dr Grabs at St Vincent's Hospital for insertion "of a porta-cath" to enable him to continue IV therapies because his veins had deteriorated making venous access difficult. (We note various professionals refer to the device as a "portacath", "portocath" or "port-o-cath". We have in each case adopted the spelling used by the relevant professional). 114On 18 November 2009 Dr Tendek prescribed Blenoxane Powder 15,000 iu for Patient A to be administered "As directed". 115On 25 November 2009 Dr Tendek wrote to Dr Grabs about Patient A. She recorded that Dr Grabs had received advice from the NSW Medical Board that, before a porta-cath device was inserted, Dr Tendek: should take reasonable steps to ensure that the procedure is in the patient's best interests. In this case at the very least you should be aware of the purpose of the central line, the identity of the practitioner providing the treatment and the nature of the treatment. The Board would not support the insertion of the line if the treatment is being administered by an unregistered individual and or if it appears that the treatment is not in the patient's best interests 116Dr Tendek advised Dr Grabs of Patient A's diagnosis. She explained that, since about June 2008, he had chemotherapy treatment "and continues to have other treatment for cancer including vitamin B17, vitamin C and oral chemotherapy". She also explained that Patient A had no usable veins for procedures for monitoring purposes. Under the heading "Aware of the purpose of the central line" Dr Tendek responded: The purpose of the central line is to allow [Patient A] intravenous access for continued vitamin C and B17 treatments which have been extremely beneficial in combination with oral chemotherapy. Also the central line is required in the event of further intravenous chemotherapy in the future. 117In the same letter Dr Tendek identified herself as the practitioner who would be providing the treatment of vitamin C and B 17. 118Dr Tendek in her clinical notes recorded details of a telephone consultation with Patient C on 4 December 2009. She noted: Unable to continue holiday as port-o-cath has become very friable and unable to use for IPT. Happened 3 days ago. Having regular IV IPT instead 119On 5 December 2009 St Vincent's Hospital wrote to Dr Tendek about Patient C's presentation at the emergency department with pain, swelling and erythema at the site of his "portocath". The hospital noted "Of note the portocath has been recurrently accessed by a nurse at a vitamin clinic where he has been receiving vitamin infusions over the past 8 months." Subsequent to this presentation, on 9 December 2009 at St Vincent's Hospital, Patient C's portocath was removed and a new port was inserted in his right arm. 120The PBS records disclose that, on 23 December 2009, Dr Tendek prescribed Bleomycin for Patient A. A record of a prescription on that date does not appear in Dr Tendek's clinical notes for Patient A. 121On 23 December 2009 Patient A consulted Dr Tendek. Her records show she prescribed Cyclophosphamide and Metformin. Patient A did not consult her again until 17 February 2010 when he was suffering another portacath infection. Dr Tendek noted on 17 February 2010 that Patient A "is going to do Dioxychlor therapy form [sic] Germany". 122On 19 January 2010 Mr K forwarded an email to the practitioner with the heading "[Patient C's first name] pathology". Mr K wrote "nola if y need meduicines pl send detailed list" [original spelling]. 123On 28 January 2010 the practitioner replied to Mr K's email dated 19 January 2010 at 10.06 pm as follows: Hi Dr K, following is list of details (1)Cyclophosamide 1gm or 2 grms (2)Adramycin (3)Vincristin (4)Cistplatin (5)Etoposide (6)Bleomycin (7)Fluororacil 1000 mg in 20ml or other dose (8)Irinotecan 500 mg in 25mls [original spelling] 124On 29 January 2009 Patient B consulted Dr Tendek. Dr Tendek recorded in her clinical notes "Is to see Dr Krishnan Chittoor when he returns in February for IPT". Dr Tendek referred Patient B to Mr Ameisen. She also ordered a number of pathological investigations. 125In February 2010 Mr K returned to Australia from overseas. 126On 11 February 2010 Mr K sent an email to the practitioner, and after noting his surprise that she was not at Edgecliff said: i have a boxful of chemo. Also some i left in malaysia. i hav an email from fed health minister that vto practiseomplemenary medicine i don't need board regn. we can do discreetly to paying patients.i aak my lady dr friend whether she woldbe interested to join us k [original spelling] 127At an interview with officers of the HCCC conducted on 10 September 2010 the practitioner told the interviewing officers Mr K had a conversation with her and said words to the effect "there's good news he's got the official letter from some official medical body that he was able to practice IPT. And then he was pressing me to help him administer medications for [Patient C]". 128The practitioner commenced part-time employment at Levity Health in February 2010. Her duties at Levity Health are asserted to be similar to those carried out by her at the Vita Centre. 129On 12 February 2010 Dr Tendek's clinical notes record she had a telephone consultation with Patient B about his pathology reports. She noted "Discussed need to commence therapy - IPT ASAP". 130On 26 February 2010 Dr Tendek recorded in her clinical notes in respect of Patient B "Has started IPT - has had 3 treatments". 131On 1 March 2010 at 6.04 am Patient B was transported by ambulance from the Narellan Motor Inn, Camden Valley Way, Narellan to Campbelltown Hospital. The ambulance notes record Patient B was found in an "almost catatonic state" in the car park of the motel. On admission to hospital Patient B was found to have a card in his wallet for a medical appointment with Dr Tendek on 3 March 2010. The hospital clinical notes on Patient B's admission include the following: Chemo in Sydney - meant to have today Social - disability pension Paying for Rx of chemo for Testicular Ca In debt on that via credit card Moved into Sydney for Rx Irresponsible in debt Having chemo twice weekly 132Whilst Patient B was hospitalised at Campbelltown Hospital he underwent a psychiatric assessment by Dr Bhardwaj, psychiatric registrar. The doctor's notes, after detailing the patient's medical treatment in Tasmania in 2008, record: Decided to seek alternative treatments, particularly IPT ....stopped conventional Rx since Dec 2008 - ? 'found'alternative doctor able to perform IPT late 2009 - came up to Sydney 27/12/09 to start same ? hs had 3 or 4 cycles of same. Last night was in a motel at Narellan Vale. ........Currently taking an unknown quantity of insulin and "chemotherapy". Last "cycle" on Wed/Thurs last week. ....Pt mentions a Dr Krishnan who is currently giving him IPT. 133On 1 March 2010 Patient B's mother telephoned Mr K. Her call was intercepted by Mr RK. Patient B's mother gave Mr RK the practitioner's telephone number and he subsequently contacted her. Mr RK states that the practitioner told him she thought Mr K was a doctor. He asserts the practitioner told him she and his father had been treating people with IPT and that Mr K was the "main provider". Mr RK asserts the practitioner telephoned him shortly after their first conversation and asked whether or not he was going to report her. 134On 2 March 2010 Mr K consulted Dr Wijeratne. He was accompanied by Mr RK. Dr Wijeratne recorded that Mr K apologised for breaking his agreement not to administer IPT and said that: -on 3 occasions, watched/observed a nurse administering insulin ... son rang a nurse, [practitioner's name] who claimed he administered IPT. Dr Krishnan stated that [practitioner's name] contacted him via advertisement, asked him to observe - thought she wanted ... to half of something went money - he returned from India with a bagful of medicines. Son thinks he was paid by [practitioner] for the med'n. 135On 2 March 2010 Mr RK lodged a written complaint with the then Nurses and Midwives Board ("the Board"). He identified each of Patients A, B, C and D has having undergone IPT although Patient C was described by another name. 136On 8 March 2010 the practitioner wrote to the NSW Medical Board. Having referred to the fact she had been unofficially informed Mr K was not registered as a doctor in NSW, she stated: Dr Krishnan on a few occasions engaged me on a casual basis, to undertake work for him as a Registered Nurse. At all times Dr Chittoor Krishnan represented to me and in the presence of people he consulted that he was a Doctor. He maintains the title of Doctor and presents himself as such. Further he included himself in an on line registry that indicates he is a doctor able to practice in Australia. It reasonably appeared to me and others he was a Doctor. ... Dr Krishnan may have also engaged other nurses who would have been similarly advised to me and still believe he is registered. 137On the same day (8 March 2010) the practitioner telephoned the NSW Medical Board and reported "she was considering working for Dr Krishnan until she was advised by his son that he was not registered". 138On 10 March 2010 the practitioner spoke with a staff member at the NSW Medical Board. A file note of the practitioner's conversation with the staff member records: He [Mr Krishnan] engaged her as his nurse and continually told her that he would be setting up rooms but this never happened and she disengaged from him. [The practitioner's] last dealings with Dr Krishnan on a clinical level were in April 2008. Prior to this, Dr Krishnan was undertaking medical assessment of people in their homes e.g listening with stethoscopes, but treatments were not proceeding. He would introduce himself to potential patients by saying "my name is Dr Krishnan". 139In about March or April 2010 Dr Tendek ceased working at the Vita Centre on a part time basis. 140On 20 April 2010 Mr K and Mr RK were interviewed by Ms Amanda Hadley ("Ms Hadley"), investigating officer, HCCC together with another HCCC investigator. 141On 20 May 2010 the HCCC wrote to the practitioner. The letter advised her that, in consultation with the board, it had been determined Mr RK's complaint warranted investigation. A copy of this letter was forwarded to the practitioner on 9 July 2010 as the practitioner asserted she had not received the original letter. 142On 29 May 2010 Patient C died. 143After a lapse of 18 months Patient A again consulted Professor Tattersall on 30 July 2010. Subsequently, on 4 August 2010, Professor Tattersall wrote to Dr Tendek noting that Patient A had been taking cyclophosphamide tablets usually on a two week cycle and had been having vitamin C infusions under her care. 144 The practitioner, accompanied by her solicitor, Mr Sloan attended the HCCC and was interviewed on 8 September 2010. The practitioner refused to have the interview recorded. A transcript of the interview was forwarded to the practitioner on 20 September 2010. 145On 9 September 2010 a discharge summary prepared in respect of Patient A noted "intermittent treatments with Prednisone and Methtrexate [sic] since August 2008". 146 On 9 October 2010 a medical registrar, Dr Robertson, recorded in Patient A's Royal Prince Alfred Hospital ("RPAH") file a history including "has had chemo Rx overseas. Has portocath in situ but ? chemo agents". When taking a "collaborative history" with the practitioner and Patient A the same day Dr Robertson recorded [Patient A's first name] has always been resistant to higher doses of chemotherapy - Takes Cyclophosphamide only 2 weeks @ at time -has had Vitamin B17 in USA as well as low dose IV chemo's ? agents. None this year. 147On discharge from RPAH a discharge summary in respect of Patient A notes that he was warned not to use the PICC line for self-injection of any medications. 148 On 7 March 2011 the HCCC wrote to Dr Tendek making enquiries about prescriptions she had written for the practitioner. Dr Tendek responded to the HCCC's letter on 17 March 2011 but did not provide the practitioner's medical records. 149On 28 March 2011 notices under s 34A of the HCC Act were sent by the HCCC to Dr Tendek and Dr Richard Moore (Levity Health). Dr Moore responded in writing to the HCCC, and Avant Law, responded on behalf of Dr Tendek. 150On 20 June 2011 Patient A, in his capacity as a solicitor, wrote to the HCCC and asserted the practitioner had not been afforded procedural fairness when interviewed by the HCCC. 151 On 22 December 2011 the HCCC lodged a complaint with the Nursing and Midwifery Council. 152On 24 December 2012 Patient A died. 153During the course of the hearing, on 26 November 2013 the Tribunal granted leave to the HCCC to add a further particular (Particular Seven) to Complaint One. The practitioner then relied on a supplementary statement dated 27 November 2013. In her supplementary statement the practitioner denied administering Bleomycin to Patient A.
The Health Practitioner Regulation National Law ("the National Law")
Objects and guiding principles 154Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2)The objectives of the national registration and accreditation scheme are-- (a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (e)to facilitate access to services provided by health practitioners in accordance with the public interest; and ....... (3)The guiding principles of the national registration and accreditation scheme are as follows-- (a)the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 155Section 3A, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 156It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186).
The onus or burden of proof 157The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.
Unsatisfactory professional conduct and professional misconduct 158Complaint One asserts the nurse is guilty of unsatisfactory professional conduct as set out in s 139B(1) of the National Law. 159The relevant provisions of that section for the purposes of this matter are follows: (1)"Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- ... (a)Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (i)Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 160Complaint 2 asserts the practitioner is guilty of professional misconduct under s 139E of the National Law. That section provides as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a)unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b)more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The expert evidence before the Tribunal 161Before discussing the particulars of the complaints, it is useful that we refer to the expert evidence before the Tribunal, including the expert evidence of Ms Helen Miller ("Ms Miller") directed to nursing practice. We also now review the expert evidence of Dr K Y Mark Wong ("Dr Wong") and Professor Tattersall. We will otherwise summarise the evidence relevant to the particulars asserted in the Complaint One not already set out under "Background" when discussing those particulars. 162Ms Miller is a well-qualified, highly experienced nurse with extensive practice as well as academic experience. She hold a Bachelor of Health Management degree, and Associate Diploma of Applied Science, Gerontology. She is a registered nurse and midwife. At the request of the HCCC she provided three reports in response to questions posed to her by the HCCC (21 February 2011, 24 February 2011 and 10 September 2012). She did not, however, comment on Particular Seven of Complaint One which was added to the Complaint after the completion of her evidence. 163In her report dated 21 February 2011 ("the first report") Ms Miller was asked whether the practitioner should have checked with the Medical Board (about Mr K's registration status) prior to commencing work with him, and whether such action would be considered normal practice. 164The background facts Ms Miller relied on included the following:
Professor Martin Tattersall AO 208Professor Tattersall was called by the HCCC as a witness. He swore an affidavit on 19 September 2013. Professor Tattersall is a highly qualified practitioner and academic who has published widely in world recognised peer reviewed journals. He has practised as an oncologist since 1975 and specialises in the treatment of cancer. His academic qualifications are ScD, MD, FRCP, FRACP. Professor Tattersall treated Patient A intermittently. He also saw Patient C on one occasion. 209Professor Tattersall explained, when he first saw Patient A, that the patient told him he was currently taking cyclophosphamide and methotrexate, two forms of oral chemotherapy drugs. He explained he did not know where Patient A had obtained these drugs and he assumed he had these drugs by reason of his treatment in Chicago. He also deposed that he had advised Patient A that methotrexate "is not usually given for low grade lymphomas". 210Professor Tattersall opined, at paragraph 9 of his affidavit, that when he first saw Patient A he "presented to me with very low grade follicular lymphoma and he had very good treatment prospects". 211Professor Tattersall, at paragraph 20 of his affidavit, noted that when he saw Patient A on 3 December 2008, a CT scan which he brought with him to the consultation showed his lymph glands had increased in size since July when he returned from Chicago. Professor Tattersall prescribed two rounds of cyclophosphamide 100mg and prednisone 50mg to be taken orally. Although Professor Tattersall saw Patient A on 28 January 2009 and recommended he should see him again in 6 weeks time, Patient A did not see Professor Tattersall again for a period of 18 months. 212In his affidavit Professor Tattersall commented that, in around 2011, Patient A suffered a number of infections in his portacath. He commented the "number of infections, and their severity and the inflammation in the central line of the portacath was extremely unusual". He explained at a consultation with Patient A and the practitioner he (Professor Tattersall) expressed the view the infections were "coming from outside", and that the practitioner had replied words to the effect "I am using my experience to administer medication through the portacath". 213At paragraph 30 Professor Tattersall explained he had seen Dr Tendek's clinical records in respect of Patient A including her prescription of Blenoxane Powder 15,00iu. He made the following points about Blenoxane:
Dr K Y Mark Wong 221Dr K Y Mark Wong ("Dr Wong") was retained by the HCCC to provide expert evidence. Dr Wong is a Staff Specialist, Sydney West Cancer Network, Sydney West Local Health District. He provided a principal and a supplementary report. 222Dr Wong describes IPT as follows: Insulin potentiation therapy (IPT) involves the use of insulin, usually given intravenously, together with conventional chemotherapy. It is intended to potentiate the anti-cancer effect of chemotherapy thus allowing the use of lower dosages of chemotherapy. Because lower dosages are being used there are fewer side effects associated with chemotherapy treatment. Insulin and the equipment required for IPT are readily available in Australia. 223In his report Dr Wong explained that "IPT is not regarded as an accepted form of cancer treatment in Australia". He referred to the minimal clinical research in Australia and noted the only study conducted of 30 patients did not "report any tumour shrinkage attributable to the use of IPT". He also pointed out a number of concerns with its use. He opined: IPT may adversely affect the treatment effect of chemotherapy as lowering dosages of chemotherapy may encourage development of drug resistance in cancer cells. In addition, insulin may promote tumour growth thus excessive use of insulin may worsen treatment outcome. Patient is at risk of serious complications associated with hypoglycaemia (blood glucose level below normal range), such as confusion and coma, which can be life threatening if untreated. 224In discussing intravenous vitamin therapy, Dr Wong opined, "Intravenous vitamin therapy is not an accepted form of anti-cancer treatment in Australia ...". He also opined "The use of intravenous vitamin therapy should be under close supervision and prescriptions by a medical practitioner should be required". 225Dr Wong explained that "High doses of Vitamin C, whether given orally or intravenously, should not be used together with Methotrexate." This he said was because: Intravenous vitamin C may increase Methotrexate toxicity via reducing the excretion of methotrexate through urine. In addition, kidney failure has been associated with high dose intravenous vitamin C through crystal formation. 226In his supplementary report, and confirmed in his oral evidence in chief, Dr Wong said "Supervision of intravenous vitamin therapy by a medical practitioner is mandatory." He went on to explain that "Intravenous vitamin can be administered by a registered nurse but supervision by a medical practitioner should be available during therapy". He also said "High dose intravenous vitamin C may cause kidney failure and interact with certain chemotherapy treatments". In his oral evidence in chief Dr Wong explained by "supervision" he meant that "medical supervision should be available within the same location as the treatment is being given". 227Although Dr Wong agreed in cross-examination by Mr Cheshire that vitamin C could be administered at home to a patient if the patient had been assessed by a general practitioner, and the practitioner ordered the treatment, his answer was not given in respect of a patient who is suffering cancer and while being treated, or who had been treated, for that cancer with chemotherapy drugs. He also explained he could not say the actual interval between the administration of chemotherapy and high dose vitamin C which would be dangerous. 228Dr Wong's evidence was given prior to the amendment of the Complaint to include Particular Seven and he was not recalled to give further evidence. 229The Tribunal also had no hesitation in accepting the opinions expressed by Dr Wong. We found his explanations about the risks associated with IPT and intravenous vitamin therapy cogent and relevant.
General observations about the complaint, proceedings where the rules of evidence do not apply and consideration of the rule in Browne v Dunn 230The format of the Complaint (in particular the material set out under the heading "background" and the interpretation to be placed on the particulars) became a subject of controversy at various times during the hearing. It was also asserted on behalf of the practitioner, that counsel for the HCCC had failed to comply with the rule in Browne v Dunn (1936) 6 R 67 in particular in respect of Particular Five. 231The Tribunal notes that the learned authors of Cross on Evidence, in commenting on the rule in Browne v Dunn at [17435] state that "The rule applies in some administrative tribunals. But the rule does not apply in the Refugee Review Tribunal because of its inquisitorial character". The rule is well explained by Hunt J in Allied Pastoral Holdings Pty. Ltd. V FCT [1983] 1 NSWLR 1 at 16 as follows: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. 232We also note the HCCC is not required to comply strictly with the rules of pleading as in the criminal law (see King v Health Care Complaints Commission [2011] NSWCA 353 per McColl JA at [5-6]). As her Honour explained [at 8] what is required in "the absence of a statutory directive to formulate complaints in a pleading" is that the "complaint should, for reasons of procedural fairness, be formulated in appropriate terms". It is incumbent on a Tribunal to make findings in respect of each particular, and to determine whether any particular or combination of particulars establishes the complaint alleged (see Lucire v Health Care Complaints Commission [2011] NSWCA 99 per Basten JA at [43]). The need to set out particulars of facts which support the conduct alleged was discussed in the recent case of Medical Board of Australia v Judge Horeman-Wren & Leggett [2013] QSC 339. 233As early as the first directions hearing held in this matter, Mr Cheshire, on behalf of the practitioner, sought that the HCCC's claim should be fully particularised so that his client knew the case she had to meet. He reiterated this position on several occasions throughout the hearing, and in his final submissions, submitted because of the way Particulars Two, Five and Seven are framed, the interpretation of those particulars advanced by the HCCC could not be maintained. 234Mr Cheshire's submissions fundamentally raise questions of natural justice and procedural fairness in a Tribunal conducting an inquiry into a Complaint under the National Law. Questions of natural justice and procedural fairness are discussed by Gaudron J in Abebe v Commonwealth (1999) 197 CLR 510 at paragraphs 111 to 113. Her Honour said: Originally, only courts were bound by the rules of natural justice, the rules being extended to what were described as "quasi-judicial tribunals" and later, following the decision in Ridge v Baldwin, to bodies charged with the performance of functions in a judicial manner. As the doctrine of natural justice developed, the requirement that the decision-maker should act judicially or in a judicial manner was seen as an essential condition of the exercise of jurisdiction and, thus, failure to observe the rules of natural justice would ground prerogative relief. More recent developments in the field of administrative law have seen the emergence of a rule of procedural fairness which requires "fair [but] flexible procedures ... which do not necessarily take curial procedures as their model". In Kioa v West, Mason J explained that rule as "a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In the same case, Brennan J described the rule as an implication to be drawn from legislation conferring decision-making authority, the implication being that "observance of the principles of natural justice conditions the exercise of [a statutory power to affect rights and interests]". Whether procedural fairness is to be seen as a common law duty or an implication from statute, it is an adaptation of the rules of natural justice to ensure fairness and flexibility in administrative decision-making. Consistency with those rules requires that it be accepted that, where a decision-maker is required to accord procedural fairness, that requirement is an essential condition of the exercise of the decision-making power. 235The principles of natural justice and procedural fairness are succinctly set out by Leeming JA (with whom Beazley P and Basten JA agreed) in Frost v Kourouche [2014] NSWCA 39. 236The manner in which proceedings are to be conducted in the Tribunal, for the purposes of this case, is found in Schedule 5D Cl 2. That clause provides as follows: In proceedings before it, a Committee or a Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit 237As presently advised, we do not consider that proceedings under the National law are strictly inquisitorial. Nor are they strictly adversarial. We are also of the view that although a Tribunal, which is multi-disciplinary, can inform itself of any matter in the way it thinks fit, that process must be in accord with principles of natural justice and procedural fairness. That is, the Tribunal cannot form an opinion based on evidence it has gathered not disclosed to the parties (see Hall v The University of New South Wales [2003] NSWSC 669 at [353]). 238In reaching this conclusion, however, we do not overlook the primary reason for the constitution of the Tribunal that includes two professional members of the same division as the practitioner the subject of the proceedings. That primary reason is so that the specialist members of the Tribunal can apply their knowledge and expertise to the evidence before them (see Kalil v Bray [1977] 1 NSWLR 356 per Street CJ at [261-262]; Minister for Health v Thomson (1985) 8 FCR 213 at 224). However, prudence will dictate that where there is a "genuine difference of view within the body of the profession concerned", such a conflict is best resolved by the adducing of expert evidence before the Tribunal (Kalil v Bray per Moffitt P). Although the decisions to which we have referred were determined prior to the introduction of the National Law, we are satisfied that the principles espoused in those decisions remain apposite to proceedings under the National law. 239We will return to the issue of procedural fairness, and the framing of the particulars when considering the relevant particular. The principles discussed by Gaurdron J in Abebe and McColl JA in King are also relevant when we consider submissions made to us by Mr Cheshire asserting non-compliance with the rule in Browne v Dunn (1893) 6 R 67.
The granting of leave to amend the complaint 240The HCCC sought leave of the Tribunal on 26 November 2013 to amend the Complaint to add a further particular (Particular Seven) to Complaint One. The asserted basis for the late amendment was because the document which revealed Dr Tendek had prescribed Bleomycin was only produced for the first time on day four of the hearing (18 July 2013). Ms Sharp explained to the Tribunal that notice had been given of the proposed amendment by her instructing solicitor to the practitioner's solicitor on 24 September 2013. The practitioner's solicitor responded to that correspondence on 28 October 2013 objecting to the proposed amended on the basis it was "vague, nonspecific and lacked particularity to the extreme, to the extent that the respondent cannot even begin to speculate what the precise allegations are levelled against her or what case it is she is supposed to meet". The HCCC responded to the practitioner's solicitors on 11 November 2013 rejecting the objections to the proposed amendment. 241Ms Sharp said of the amendment, which alleges that the practitioner participated with Patient A in the procurement of Bleomycin without its administration being supervised by a medical practitioner: We meant that [the practitioner] was present with [Patient A] when he requested a prescription for chemotherapy medication, and [the practitioner] told Dr Tendek she would administer the medication. 242In seeking to establish this particular Ms Sharp relied on Dr Tendek's evidence where she conceded she had written a prescription at Patient A's request, and said that it was to be administered by the practitioner. 243Ms Hook, Ms Sharp's instructing solicitor, gave oral evidence about Dr Tendek's records produced under s 34 A of the HCC Act, and that those records did not include her consultation notes of 18 November 2010 when she prescribed Bleomycin for Patient A. 244The basis of Mr Cheshire's objection to the amendment was that it was not made immediately after Dr Tendek gave her evidence in July. He said that the HCCC could have obtained the relevant information by procuring PBS records prior to the hearing. He further submitted prejudice to his client because he had cross-examined Dr Tendek and prepared his cross-examination based on the then complaint. He relied on the principles espoused by the High Court in Aon v Australian National University (2009) 239 CLR 175 about granting of leave to amend late in the proceedings. 245The Tribunal determined to allow the addition of the further particular notwithstanding that it was not made until mid way through the hearing. 246The Tribunal found first, there was cogent explanation for the delay in seeking the amendment. It is not in dispute that not all Dr Tendek's records were produced, as required, under s 34A of the HCC Act. Secondly, until her full records were produced there was no indication that would have directed the HCCC to the need to procure the PBS records. Thirdly, notice of the proposed amendment was provided in a timely way as soon as the HCCC had taken steps to check with Professor Tattersall the relevance of the chemotherapy prescribed for Patient A. Fourthly, Mr Cheshire could have requested Dr Tendek be recalled for further cross-examination. Fifthly, the Tribunal received into evidence the practitioner's supplementary statement dated 27 November 2013 in which she responded to the allegations in the new particular. Sixthly, the practitioner was not caught by surprise about the facts underlying the particular. She was present with Patient A at the consultation when Dr Tendek prescribed Bleomycin. Finally, the Tribunal noted at no point in his submissions did Mr Cheshire raise the need for an adjournment to meet the further particular, nor did he do so after leave to amend was granted. Thus, we are satisfied the practitioner was not prejudiced by the allowing of the amendment.
Submissions made on behalf of Dr Tendek 247There was insufficient time at the conclusion of the hearing for Mr Barnes to make any oral submissions to us about Dr Tendek's evidence. Ms Sharp noted that the Tribunal had granted leave to Mr Barnes to appear on Dr Tendek's behalf for the purposes of giving her advice in relation to self-incrimination. She maintained in these circumstances Mr Barnes role was limited, and that he should not have the right to make submissions to us about Dr Tendek's evidence, or our findings based on that evidence. 248As a practical matter, the Tribunal, in an endeavour to reduce costs and conclude the matter in a timely manner, permitted Mr Barnes to provide submissions on the "threshold" issue of his right to do so, and if we accepted he should be permitted to make submissions, his substantive submissions. 249Written submissions were received from Mr Barnes on 9 December 2013 and a response to his submissions was provided by Ms Sharp also dated 9 December 2013. 250Mr Barnes pointed out that when he first appeared for Dr Tendek he had emphasised his role was less concerned with possible self-incrimination "than it was with questions being put to Dr Tendek, the object of which was to establish the propriety or otherwise" of her conduct. Mr Barnes described his proposed role on 17 July 2013 (transcript p 61). 251At the conclusion of Dr Tendek's evidence the Chairperson indicated that the Tribunal would notify Mr Barnes when the evidence was complete so that he could be present for the whole of the submissions. At the conclusion of the evidence Mr Barnes indicated he wished to make submissions going to Ms Sharp's submissions about credit findings in respect of Dr Tendek, and the doctor's response to correspondence from the HCCC. 252We accept that at no time during the course of the hearing did Ms Sharp object to Mr Barnes being granted leave to appear before the Tribunal, nor did she object when the Chairperson indicated that Mr Barnes could be excused at the conclusion of Dr Tendek's evidence, and notified when the Tribunal concluded the evidence and was to hear oral submissions. However, at that stage Mr Barnes had not indicated he would want to make submissions about any credit findings the Tribunal might make in respect of Dr Tendek's evidence. 253The Tribunal has determined, given the basis Mr Barnes sought leave to appear on 17 July 2013, on the terms he then enunciated, that we should receive and take into account the substantive submissions he has made. In so finding we also propose to have regard to Ms Sharp's submissions on the topic of Dr Tendek's evidence. 254In our view the National Law determines how we should deal with the substantive submissions. 255Section 165M (1) and (2) (formerly s 167F (1) and (2)) of the National Law) provides as follows: (1)As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to-- (a)the parties; and (b)the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party). (2)The statement of a decision must-- (a)set out any findings on material questions of fact; and (b)refer to any evidence or other material on which the findings were based; and (c)give the reasons for the decision. 256We accept we are not dealing with a complaint about Dr Tendek's professional conduct, and we only have regard to her evidence insofar as it touches upon and is relevant to the particulars in the two complaints alleged against the practitioner. 257The Tribunal is satisfied it must examine the evidence given by Dr Tendek, and make findings of fact based on that evidence insofar as it is relevant to the complaints alleged against the practitioner. It is inherent in this task that, as with any witness before the Tribunal, we assess and make findings about the reliability of the evidence adduced, the weight to be afforded to it, and if appropriate, make credit findings about the witness. In so determining we accept the merit of the submission made by Mr Barnes that at no stage did Ms Sharp put to Dr Tendek "that she was in the camp of Ms Fraser".
Particular One 258Ms Sharp readily acknowledged that the gravamen of Particular One is that the practitioner, in accordance with an arrangement with Mr K, administered IPT or alternatively intravenous vitamin therapy to the four named patients knowingly or being recklessly indifferent to the fact he was not registered as a medical practitioner. 259This particular requires, as a threshold issue, that the Tribunal examine the evidence and making findings about the practitioner's knowledge of Mr K's registration status, and if she did not have actual knowledge of that status, whether she was "recklessly indifferent" to the question of his registration. The claim of "reckless indifference" requires us to consider, in the circumstances of a complaint under the National Law, the appropriate test to establish "reckless indifference". We discuss that test later in these reasons.
Did Ms Miller depart in her oral evidence from her report 260Mr Cheshire submitted that Ms Miller had, in her oral evidence, changed her position from that expressed in her report. He submitted Ms Miller conceded in her oral evidence that the failure of the practitioner to check Mr K's registration status before entering into an arrangement with him to engage in the administration of IPT, and/or intravenous vitamin therapy as his assistant was a departure from the standard expected of a practitioner of the practitioner's experience, was below the standard, but not significantly below the standard (see transcript page 249 27 November 2013). Prima facie, when Ms Miller's answer given at Transcript p 249 is read in isolation, this submission appears to have merit. But on closer examination, we do not accept that Ms Miller departed from her report. That part of Ms Miller's cross-examination must be read in context. Ms Miller agreed (at p 239) that if the practitioner had an honest belief that Mr K was registered, but had some concerns because he did not have rooms and the treatment he was conducting (IPT) was experimental then: (3)If he was registered - she would be critical of the practitioner's conduct in administering such therapy for failing to check, but her conduct would not be a significant departure (from the standard reasonably expected of a practitioner of an equivalent level of training or expertise); (4)If he was unregistered - she would be critical of the practitioner's conduct in administering such therapy for failing to check, but her conduct would not be a significant departure (from the standard). 261In other words, we perceive Mr Cheshire to submit Ms Miller's answer at 249 should be read in isolation from earlier questions and answers. On a careful overall reading of the transcript we are satisfied that the way Mr Cheshire posed his initial questioning to Ms Miller confused her. Further, when Ms Miller returned to the hearing room after legal argument, and Mr Cheshire again posed his question the "facts and assumptions" he asked Ms Miller to accept were not spelt out. We are satisfied the facts and assumptions which Ms Miller took into account in giving this answer included, as the prime (or first) assumption to which she had regard was that the practitioner had an "honest belief" Mr K was registered, and what was in issue was her conduct in administering IPT in those circumstances, not her conduct in failing to check his registration prior to entering into an arrangement with him. We conclude that, in giving her answer Ms Miller was not cognisant that Mr Cheshire had fundamentally shifted his questioning from Question 8 to Question 1 in her report. 262In summary, we do not accept the general proposition that Ms Miller changed her position from her report in her oral evidence. In particular, we are satisfied she did not depart from her expressed opinion in relation to Question 7. It will be remembered when answering this question Ms Miller opined that if it was proved the practitioner knew Mr K was not registered she was putting her brother and others at great risk, and her "action is well below the accepted standard and shows a significant departure and deserves strong criticism". We will refer again to this part of Ms Miller's evidence when dealing with Particular 1.1.4.
Evidence and discussion Particular One 263The evidence relied on to support this particular ranges over a period of time, and includes both documentary and oral evidence. As earlier noted, the practitioner maintains at all times up to her telephone conversation with Mr RK on 1 March 2010 she believed Mr K was a registered medical practitioner. The practitioner further maintains in respect of number of emails received from Mr K either that she did not read them, or that she only read emails a considerable period of time after they were sent to her. The practitioner's evidence is that she did not read emails addressed to a gmail account shortly after they were sent to her by Mr K. There is no doubt that the practitioner maintained two email accounts, and the gmail account was set up for overseas use. She operated a separate email account on return from overseas in 2008. 264The practitioner also maintains reliance on the IPT web-site where Mr K is listed with the letters "MD" after his name. The information provided on the web site refers to "physicians" whose practices offer IPT. Not all persons listed have the initial "MD" after their name. Ms Miller gave evidence that MD is not a recognised description for a medical practitioner in Australia, but rather has application in the USA. We accept her evidence on this topic. We are also satisfied that this was a fact well known to this experienced practitioner. As a consequence it could have had little, if any, influence on her view of Mr K's registration status. 265The practitioner and Patient A first met Mr K in a café in Bondi Junction. At that meeting Mr K took a clinical history. He is reported to have told the practitioner that a claim could not be made on Medicare for the provision of IPT by him. Although the practitioner agreed in cross-examination that it was an unusual procedure for a doctor to consult with a patient in a café, she sought to draw an analogy with a solicitor meeting a client in a café noting her brother sometimes adopted this practice. She described the interview in the café as "it was unusual but it was acceptable". 266When asked about her statement that, notwithstanding Mr K had only recently completed training in IPT, he had told her he had treated about 200 patients she asserted she did not find his statement "a little odd". Rather, she referred to the possibility he had treated four or five patients a day, and said that Mr K's claim did not "alarm me at all or concern me". 267The Tribunal found the practitioner's explanation why she was not concerned about the propriety of meeting in a café, and her response to Mr K's asserted claims treatment of 200 patients as inherently improbable. We do not accept it. 268Ms Sharp submitted that, because of the practitioner's employment at the Vita Centre, we should draw the inference Mr Ameisen told the practitioner when he became aware from Dr Wijeratne that Mr K was not registered of that fact, and/or we should draw the inference that Patient A, who was at one point acting for Mr K and requested his medical records from Dr Wijeratne, was acting for him in respect of his re-registration, and told his sister that Mr K was not registered. 269Although Mr Ameisen in his oral evidence to the Tribunal agreed he could possibly have told the practitioner that Mr K was not registered the practitioner denied he had done so. 270The Tribunal found aspects of Mr Ameisen's evidence to be unreliable. His evidence about why he was unable to produce any records, notwithstanding he asserted no records had been destroyed, was not accepted by us as truthful evidence. The Tribunal found it was possible that Mr Ameisen did tell the practitioner about Mr K's registration status when he received Dr Wijeratne's letter dated 10 September 2009 or at least when he received the letter from the Medical Board dated 13 January 2009. However, we are not satisfied to the requisite standard that it was more probable than not he did so. 271The practitioner maintained the total record of interview conducted by the HCCC under s 34 of the HCC Act was unreliable, not just the portion reconstructed from notes when the typist "lost" about an hour of typing when the document was not saved. 272In answering questions posed to her about the consultation with Dr Laverin the practitioner asserted the recording in the HCCC interview was incorrect. In that interview the practitioner is recorded as saying that she and her brother were told by Mr K that he was working at Dr Laverin's rooms, that they were under the impression they would go straight in and Patient A would receive IPT. The practitioner departed from this explanation in her oral evidence asserting Patient A would only seek IPT if he needed it, and he did not need IPT at this time. This evidence is completely at odds with her email to Mr K dated 2 July 2008. 273The practitioner is recorded in the HCCC interview to have said "We got suspicious when he was on the same side of the desk as us". She also said in that interview, that after leaving Dr Laverin's rooms, Mr K said things like "this doctors an idiot, he crazy in the head". The practitioner denied in the course of her cross-examination that Mr K had said these words, rather she said "I think he used the word fruitcake or something like that". 274The practitioner denied that the fact Mr K had taken Patient A to another practitioner to obtain IPT was "quite an unusual thing to occur", or that it "set off alarm bells" in her mind. Her explanation was that the doctor to whom Mr K was referring, who would administer IPT, was not Dr Laverin, or a communication problem. She also said that it did not cross her mind to ask Mr K whether or not he was registered when Dr Laverin explained during the course of the consultation he was not sure whether his professional indemnity insurance would cover the carrying out of IPT in his rooms. 275The practitioner denied reading the email sent to her by Mr K on 2 September 2008 and asserted she had only read portion of an email sent by him on 31 August 2008 to obtain the address details of Dr Laverin's rooms. 276Ms Sharp put to the practitioner in cross-examination that it was odd for a practitioner (who was registered in NSW) and could write a prescription for chemotherapy drugs to be suggesting he could obtain the drugs overseas. The practitioner responded to this proposition on the basis that Mr K had told her the relevant drugs could be obtained cheaply overseas. She was also cross-examined as to whether she found it strange that Mr K asked her to ring around drug companies to get the cheapest price for drugs. She explained this "just part of the communication problem we had". 277Although the practitioner conceded at one point Patient A acted as Mr K's solicitor, she denied that Patient A had told her that Mr K was unregistered. Rather she said her brother was addressing a number of Mr K's complaints including Mr RK's control of his finances. 278The practitioner's evidence in respect of her knowledge of the ability to search a doctor's registration status on line was that she "didn't know" how simple it was "because when I ceased practising it wasn't on-line". She agreed, however, that shortly after her conversation with Mr RK she had telephoned the Medical Board to check his registration. 279When questioned about the emails sent to her by Mr K about difficulties with his registration in October/November 2008 and in particular an email dated 30 October 2008, the practitioner asserted that she understood Mr K's problem was with the Immigration Department, and was to do with his entry into Australia from India, not a registration problem. 280The practitioner sought to explain her understanding of Mr K's email of 10 February 2010 on the basis that his reference to carrying out IPT discreetly was not because he was unregistered, but rather because the treatment attracted criticism of "the powers" who would try to "shut him down". The practitioner denied that by the time she was involved in the administration of IPT to Patient B she was well aware that Mr K was not registered. 281Mr K, in his affidavit affirmed on 17 June 2013, asserts in a conversation with the practitioner and Patient A at Campbelltown Station in late 2008 or early 2009 he told the practitioner he was not registered. The practitioner denies ever meeting Mr K at Campbelltown Station.
The meaning of "recklessly indifferent" 282We turn then to the question of whether the practitioner was "recklessly indifferent" to whether or not Mr K was a registered medical practitioner and in particular how we should construe the words "recklessly indifferent" in Particular One. 283In her written submissions on this topic Ms Sharp drew the Tribunal's attention to a decision of the High Court (which we discern to be the decision in Banditt v The Queen (2005) 224 CLR 262; (2005) 80 ALJR 421; [2005] HCA 80). Ms Sharp submitted "Reckless indifference describes a situation where a person does not care one way or the other". Later in her written submissions Ms Sharp said "... the HCCC submits the Tribunal should find that [the practitioner] "either did not care about whether [Mr K] was registered, or wilfully shut her eyes to what would result from further (simple) inquiry into his registration status". 284In his oral submissions Mr Cheshire said "Now recklessly indifferent is at the very least not caring less, not caring either way, but in my submission it goes beyond that", and after citing authority, referred to the requirement there be an absence of honest belief, he said: So if [the practitioner] honestly believed then that's the end of it and it has to be did not care less and didn't believe he was registered. 285Mr Cheshire went to refer to the tests being "a high hurdles", and that "they are not negligence" noting that the HCCC's case was not pleaded as "knew or ought to have known". Mr Cheshire submitted that, although it had been put to the practitioner that she knew, and that she ought to have known, Mr K was not registered "it was not put to her that she couldn't care less, its was not put to her there was an absence of honest belief". 286In Banditt, albeit in the context of a case involving sexual assault, the High Court (Gummow, Hayne and Heydon JJ) set out the principles to be applied to establish "reckless indifference" in the context of a civil claim, noting the different jurisdictional facts to be found in the case of negligence as distinct from a case involving fraud. Their Honour at 265-266 said: The term "reckless" has various uses as a criterion of legal liability. This appeal turns upon one such use of the term in the New South Wales criminal law, but it is convenient first to consider some aspects of the civil law. When "reckless" is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown "that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false" But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek: "[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states." This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result. To these expositions of the civil law by Lord Herschell and Lord Esher there may be added the following statement by Lord Edmund-Davies in his dissenting speech in R v Caldwell: "So if a defendant says of a particular risk, 'It never crossed my mind,' a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant's admission that he 'closed his mind' to a particular risk could prove fatal, for, 'A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter'." (original emphasis) (footnotes omitted). 287The term is also discussed in the recent decision of the NSW Court of Appeal in Prepaid Services Pty Ltd & Ors v Atradius Credit Insurance NV [2013] NSWCA 252. The case involved an alleged fraudulent misrepresentation. Meagher JA set out the seminal statement of Lord Hershall in Derry v Peek (1889) 14 AC 337 at 374 and went on to explain at [30]: For fraudulent misrepresentation to be made out it must be established that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood: John McGrath Motors (Canberra) Pty Ltd v Applebee [1964] HCA 1; 110 CLR 656 at 659-660 (Kitto, Taylor and Owen JJ); Krakowski v Eurolynx Properties Ltd [1995] HCA 68; 183 CLR 563 at 578-579 (Brennan, Deane, Gaudron and McHugh JJ). In Forrest v Australian Securities and Investments Commission [2012] HCA 39; 86 ALJR 1183 at [22] (French CJ, Gummow, Hayne and Kiefel JJ) it was emphasised that a false statement "made through carelessness and without reasonable grounds for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud 288We are satisfied the underlying facts about Mr K's registration status in this case are not on all fours with those involving a case of deceit where the actual knowledge, or state of mind of the person, making the representation is the crucial factual matter to be determined to establish fraud. 289We accept that if the complaint had been pleaded on the basis that that the practitioner knew, or ought to have known, Mr K was not registered the test would, as in the law of negligence, be established if objectively assessing the evidence it was clear the practitioner ignored or disregarded matters which would have put any reasonable person in her position on notice that Mr K was not registered. But that is not how Particular One is framed. We accept the concept of "reckless indifference" involves a different test. 290While Mr Cheshire submitted that the further and better particulars of the Complaint provided by the HCCC could not be used to enlarge the claim, it is instructive to refer to those further and better particulars. The HCCC was asked "set out the full particulars relied on support of the allegation that [the practitioner] was recklessly indifferent as alleged". The HCCC in its letter dated 6 August 2012 repeated its answer to an earlier particular (which referred to the practitioner being engaged by Mr K, that IPT was experimental, Mr K was prepared to source chemotherapy medication in India, that he had no office and was out of Australia for months at a time, had no patient files, did not write prescriptions for medications administered to patients, and the locations in which IPT and or vitamin therapy were performed). The HCCC then said Answer (a) is repeated and despite knowledge of these matters, [the practitioner] took no steps to ascertain whether [Mr K] was a registered medical practitioner in New South Wales 291The essential thrust of Mr Cheshire's submission in respect of this aspect of Particular One is directed to an asserted failure to comply with the rule in Browne v Dunn. 292The Tribunal accepts that Ms Sharp did not directly put to the practitioner in cross-examination that she did not have an honest belief that Mr K was registered. But Ms Sharp did afford the practitioner multiple opportunities to deny the case advanced by the HCCC that she was aware there was a risk Mr K was unregistered and that she turned a blind eye, or closed her mind to that risk. 293The particulars supplied by the HCCC, together with thrust of Ms Sharp's questioning of the practitioner, could have left her in no doubt that she was being challenged on the basis her asserted belief about Mr K's registration status was not honestly held. The practitioner steadfastly maintained her position that she honestly believed Mr K was at all material times, a registered medical practitioner.
Findings - Reckless indifference or knowledge Mr K was not registered 294The Tribunal is cognisant that Mr RK, in his statement dated 26 July 2010, at [4] records that when he telephoned the practitioner on 1 or 2 March 2010 she explained she thought his father was a registered practitioner, and when told that he had retired and was not registered he formed the view "that this was a surprise to her", and that "she seemed to back off". This evidence supports the practitioner's claim that she did not know Mr K was not registered. 295The Tribunal balanced this evidence, and all other relevant evidence on this topic, including that of the practitioner. We found ultimately we could not place any significant weight on Mr RK's initial impression of the practitioner's response. 296The Tribunal is satisfied that the total record of interview by the HCCC is not, as asserted by the practitioner, inaccurate. The practitioner's oral evidence in cross-examination departed from that interview in a number of material areas. The Tribunal accepts and prefers the evidence of Ms Hadley as to the circumstances which occurred on the 8 September 2008 and the lack of subsequent response from Mr Stephen Sloan when he was provided with the transcript. 297The Tribunal finds where there is a discrepancy between the HCCC's transcript of the interview and the practitioner's first statement and her oral evidence, the transcript is to be preferred as the accurate account. 298The Tribunal is satisfied that the practitioner is an experienced, intelligent, sophisticated professional of wide ranging experience in nursing. She readily agreed Dr Ameisen (as he then was) required her to produce her registration before she commenced working with him. She ran her own beauty clinic and entered into a commercial arrangement with two practitioners to work on a consultancy basis. Her explanation as to why she did not check their respective registration details is entirely plausible. Both had been her treating doctors for a number of years in established practices. This is to be contrasted with Mr K's situation, and the practitioner's lack of knowledge of his antecedents. 299It is of note the practitioner was able to promptly telephone the Medical Board after her conversation with Mr RK (during which she asked Mr RK if he intended to report her) to speak to a Medical Board employee about Mr K's registration status. We are satisfied she took this pre-emptive measure when she was concerned Mr RK intended to report her to the Board. It is inherently unbelievable that she could not have contacted the Medical Board earlier in her relationship with Mr K. 300The following matters must have raised significant concerns in the practitioner about Mr K's registration status. We are comfortably satisfied the practitioner wilfully ignored these matters:
Asserted administration of IPT or IV Vitamin therapy to Patient A at the Cosmetic Clinic, Patient A's home, or the home of the Practitioner
Evidence relative to the administration of IPT to Patient A 307Mr K in his affidavit deposed to providing IPT to Patient A at the practitioner's home at Campbelltown sometime in late 2008 or early 2009. He asserted that the practitioner supplied the giving set. He also said the practitioner showed him a vial marked something like "rapid acting insulin 10ml" which she drew up in a syringe which she injected into Patient A's arm. He asserted she had also already mixed the chemotherapy drugs into another syringe which she injected into Patient A's arm. 308Mr K deposed that, approximately two weeks after Patient A's treatment, he was present when another patient was treated at a cosmetic clinic somewhere in Campbelltown. He deposed to the practitioner giving him $300 or $400 in cash at the end of his visit. 309Patient A provided an affidavit in which he deposed that he had never received IPT in Australia. Because of Patient A's untimely death, he could not be crossed examined on his brief affidavit sworn shortly prior to his death. We find, in accordance with authority, while his affidavit is admissible, we can give little weight to it. Rather we find it safer to examine other documentary evidence which supports his evidence. 310It is not in dispute that the practitioner readily concedes her brother wanted to obtain IPT in Australia if he needed it, and that he sought IPT in preference to conventional chemotherapy. However, she robustly asserted she had never administered IPT to her brother, nor had he had IPT in Australia. 311The HCCC's case in respect of Patient A, other than Mr K's affidavit evidence, is based entirely on inferences to be drawn from documents. Many of the facts recorded in the documents are records of Mr K's assertions to third parties. Appropriately, Ms Sharp conceded that great care should be taken by us in respect of Mr K's evidence, and we should only rely on it when supported by corroborating documents. In many respects this is a circular argument because the corroborating documents are statements made by Mr K to medical practitioners, albeit that the statements were more proximate in time to the relevant period. 312The facts relied on by the HCCC are set out by us under background and it is unnecessary we repeat those matters in any detail. In summary the critical evidence relied on by the HCC includes:
Findings administration of IPT to Patient A 314It is important at this point we return to the standard of proof required to prove the Complaint. In Briginshaw Dixon CJ said at 360-361: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 315While there is a body of evidence from which we could draw an inference that Patient A did receive IPT in about February 2009 we are not comfortably satisfied that the evidence, taken at its highest, supports a finding that the practitioner was involved with the administration of IPT to her brother at this time or at all. 316In reaching this conclusion we note that it is acceptable for a court to draw an inference from substantiated facts. We have taken into account that Mr RK's evidence, which we accept, was that he could not tell when his father was telling the truth. We could not be confident, given the inconsistencies in Mr K's evidence, of its reliability. The "corroborating" documents did not provide independent evidence of the administration of IPT, rather they were reports whose authenticity relied on statements made by Mr K. The RPAH notes of 2010 are equivocal as to whether or not Patient A received IPT in 2009. 317While Patient A's failure to consult Professor Tattersall during the relevant period, the obtaining by him of Bleomycin from Dr Kalokerinos in June 2009, and Dr Tendek in August 2009, and the practitioner's statement to Mr RK that she and Mr K treated "people" raise considerable doubts about the veracity of the practitioner's evidence, the evidence falls short of leaving us in a situation of being comfortably satisfied that she administered IPT (as set out in 1.1 of Particular One) to her brother during the period specified in 1.1.1.
Evidence regarding the provision of vitamin therapy to Patient A under the supervision of Mr K 318It is the HCCC's case that the practitioner obtained large quantities of vitamins and other drugs pursuant to prescriptions written by Dr Tendek and Dr Moore, and administered these substances to her brother without an order from a doctor as to how, when and what quantities of vitamins were to be administered. There is an overlap between this Particular and Particular Three. 319The practitioner did not dispute that she administered intravenous vitamin therapy to her brother, but said she did so with his consent, after he consulted Dr Tendek, and under her direction. She also referred to her administration of such therapy being in her capacity as a "carer", rather than as a nurse.
Findings provision of vitamin therapy to Patient A under the supervision of Mr K 320We were not taken to any evidence which supported a finding that the practitioner administered intravenous vitamin therapy to Patient A under the supervision of Mr K. To the contrary, the evidence in relation to the administration of intravenous vitamin therapy was that Patient A received this treatment at the Vita Centre, and after November 2009 by the practitioner either under the supervision of Dr Tendek, or without proper supervision. We do not find the facts asserted in 1.1.1 insofar as they refer to intravenous vitamin therapy being administered in association with Mr K in respect of Patient A established.
The administration of IPT to Patient D in around April 2009 at Bridge Street Westmead 321Particular 1.1.2 asserts that the practitioner administered IPT or intravenous vitamin treatment to Patient D at the home of Patient D at Bridge Street, Westmead. 322The framing of this particular appears to have been based on the evidence given by the practitioner at her interview with the HCCC. The record of interview (prior to the "lost" part of the record) discloses the practitioner said she had administered some vitamin C to a lady called "Anna" from Japan, and that she was treated at her place at Westmead.
Evidence about Patient D 323The practitioner in her statement asserts Mr K both emailed her and spoke to her on 24 April 2009 about Patient D coming from Japan to have IPT, and suggested this should be done at the Vita Centre. The practitioner said she told Mr K "I don't think Paul will let you do it at Edgecliff". This stance is readily understandable given the practitioner's "blind eye" attitude, or possible actual knowledge about Mr K's registration status. The practitioner was well aware in April 2009 Mr Ameisen required to see Mr K's registration before he would permit him to practise at the Vita Centre. 324On 25 April 2009 the practitioner told Mr K the treatment could be done at her home, but said shortly after she reconsidered her agreement to the use of her home. She advised Mr K that neither her home, or the Vita Centre, were to be used for the proposed treatment. She further asserts that she told Mr K that nurses in Australia did not get chemotherapy drugs and that she provided him with the telephone number of suppliers of giving sets and IV fluids. 325On about 12 May 2009 the practitioner asserts Mr K walked into the nurses' station at the Vita Centre and asked her would she administer Vitamin C instead of IPT to Patient D because he was concerned her diagnosis of breast cancer had been done only by ultrasound and she had not had a needle biopsy. She asserts, on 14 May 2009, she drove to Westmead. She asserts that Mr K and Patient D were present when she arrived and Mr K supplied all the equipment and medication. She said Patient D said "Oh a different nurse today". The practitioner said she kept notes of the treatment during the procedure including recording fluids used, "Vitamin C, the dose, expiry date and the route of administration were double-checked by [Mr K]". At the conclusion of the treatment she said she signed the notes and handed the book to Mr K. She said she did not receive any payment. 326As earlier noted, Patient D lives in Japan and her evidence was taken using Skype technology. She explained that, having found Mr K's details on the IPT website, she contacted him and sought IPT treatment as she was not feeling well and was proposing to be in Australia on holiday. Mr K provided her by email with the address of two nurses she could contact in order to arrange a place to meet for treatment. One of the nurses was the practitioner. She explained that she first met with Mr K at her friend's home in Glebe and that another nurse, not the practitioner, assisted with an intravenous infusion of vitamin C. On this occasion Patient D said Mr K produced a bottle of vitamin C, and after discussion with her, refused to give her IPT on the basis there was no evidence she had cancer. Mr K recommended vitamin C treatment. She explained he had a stethoscope and a drip. Patient D said that the she had a second treatment from Mr K because she wanted to continue the vitamin C treatment. 327Patient D denied that she had received her second treatment at Westmead and was adamant that it also occurred at Glebe. She explained on that occasion she again received vitamin C not IPT, that the practitioner inserted the cannula into her vein, connected the tube and administered vitamin C. She also stated she saw the practitioner writing in a book. 328In answer to questions posed cross-examination by Ms Sharp, Patient D explained she believed Mr K had administered IPT in Australia, but Mr K had never told her who he worked with in Australia. She also said that while the practitioner had discussed Patient A having IPT she did not say he had undergone IPT in Australia.
Findings administration of IPT and or intravenous vitamin therapy to Patient D 329Patient D was a convincing and credible witness who the Tribunal found to be a witness of truth. We accept and prefer her evidence to that of Mr K about the treatment she received from Mr K and the practitioner. However, her evidence about the venue of the treatment at Glebe, which was only revealed in her oral evidence to the Tribunal and after the conclusion of the practitioner's cross examination, cast doubt on the reliability of the practitioner's evidence on this topic. We note that in both her interview with the HCCC and in her statement the practitioner refers to the treatment being given at Westmead. We also note the inconsistency in the practitioner's interview with the HCCC about obtaining vitamin C from Mr Ameisen, and her denial in her oral evidence that she had done so. 330Three critical questions arise. The first is whether, by May 2009, when the Vitamin C was administered to Patient D the practitioner was aware that Mr K was not registered, or recklessly indifferent to that fact. Second, if the practitioner was recklessly indifferent to whether or not Mr K was registered, was her conduct in participating in the provision of vitamin C therapy to Patient D in a private home, or the judgment she exercised in doing so, significantly below the standard reasonably expected of a practitioner of any equivalent level of training or experience. Third, were her actions improper or unethical conduct relating to the practice of nursing? 331We have found that by February 2010 the practitioner knew Mr K was not registered. A time-line by which she could be said to be recklessly indifferent to the fact of his registration is somewhere on the continuum from the meeting in the café in August 2008 to 30 October 2008. As earlier recorded, we are satisfied by at least 30 October 2008, the practitioner turned a blind eye, and was recklessly indifferent to whether or not Mr K was registered. Thus, by 14 May 2009, the practitioner could not have held an honest belief that Mr K was a registered medical practitioner. 332We turn then to Ms Miller and Dr Wong's evidence to address the two remaining questions we have posed. It is clear from Ms Miller's cross examination that questions were posed to her by Mr Cheshire on the basis that the practitioner was providing intravenous vitamin C therapy authorised by a registered doctor, or a doctor she honestly believed to be registered, and that although she expressed some qualifications, particularly around "supervision", she would not have been critical of a practitioner for administering the therapy in these circumstances. 333In Ms Miller's supplementary report she refers to the practitioner, as a result of her experience and expertise at the Vita Centre in the administration of intravenous vitamin therapy having an awareness of the risks of this therapy, and stated "she should have been aware of the risks associated with the administration of these [therapies] without appropriate authority" (our emphasis). As we find the practitioner was, at the time of the administration of the vitamin C therapy, recklessly indifferent as to whether or not Mr K was registered, it follows she could not be confident that she was administering vitamin C therapy, with its attendant risks, under the supervision, or with appropriate authority, of a registered medical practitioner. 334At page 3 of her first report Ms Miller described the practitioner's conduct, if she had administered intravenous vitamin therapy to Patient A in the circumstances the practitioner explained in her HCCC interview, that her conduct "was well outside the accepted standard and shows a significant departure and deserves strong criticism". We accept Ms Miller's opinion. This opinion, whilst expressed in respect of Patient A, was based on a lack of supervision of the therapy by a registered medical practitioner. Her opinion is, by analogy, equally applicable to the administration of vitamin C to Patient D in the circumstances found by us. 335Even if we are not entitled to rely on Ms Miller's opinion insofar as Patient D is concerned, or her opinion about the consequences of the practitioner's failure to check Mr K's registration before entering into an arrangement with him, we are comfortably satisfied that Dr Wong's evidence demonstrates cogently the inappropriateness of this treatment in a private home particularly when the practitioner did not know Patient D's medical history, what chemotherapy drugs Patient D received in Austria, or consider the potential for Patient D suffering an adverse reaction to the therapy provided. Thus, we are satisfied that the practitioner's conduct in respect of Patient D was significantly below the applicable standard. 336Neither expert directly addressed the question of whether the practitioner's conduct in respect of the administration of intravenous vitamin therapy was unethical or improper. The Tribunal itself, using its specialist knowledge to assess the evidence, and taking into account the views of Dr Wong, is however satisfied the circumstances in which the practitioner participated in the administration of the intravenous vitamin C therapy was improper. 337The final point we must consider is whether or not proof of this particular is fatally flawed because it refers to the treatment occurring at Westmead, rather than at Glebe. 338Mr Cheshire throughout the hearing of this matter has rightly been at pains to stress the HCCC are bound by the case they have pleaded, and that it would be procedurally unfair to step outside the Complaint, or put a gloss on matters pleaded in it. He asserted, during the course of the hearing, that the HCCC should not be entitled to rely on the material described under Particular One of the Complaint as "Background", but only on the particulars as set out in the document. That interpretation was rejected by us during the course of the hearing because we were satisfied reliance by the HCCC on the material under "Background" did not cause procedural unfairness to the practitioner. 339Mr Cheshire's stance on this issue demonstrates a contradiction in the arguments raised on the practitioner's behalf. We have already noted that it is asserted on behalf of the practitioner that Ms Miller changed her position in her oral evidence in respect of Question 1 in her report. That question is directed to the practitioner's failure to check Mr K's registration before entering into an arrangement with him to provide her services. But that fact is not pleaded in Particular One, rather it forms part of the "Background". 340We are satisfied that the gravamen of this complaint is that the practitioner, being recklessly indifferent to whether Mr K was registered in NSW, agreed to carry out intravenous vitamin C therapy to a patient from overseas in a private home. It seems to us there is no procedural unfairness to the practitioner in the Tribunal ignoring the named suburb set out in the Complaint. This is because Westmead is the suburb the practitioner told the HCCC and put in her statement as the venue of the treatment. That information is inaccurate. 341In reaching this finding we took into account that Patient D's statement was silent as to where the treatment occurred and the HCCC had no details, other than an email address to contact Patient D, to obtain further and better particulars of her statement. Attempts by the HCCC to contact Patient D, or to obtain further contact details from the practitioner, were unfruitful. We do not accept that this particular should not meet the requisite evidentiary standard because it contains reference to Westmead rather than Glebe. This is because the practitioner's statement under s 34A of the HCC Act was relied on by the HCCC in good faith. It would be perverse if the particular was found "not proven" because of inaccurate evidence given by the practitioner. We are satisfied that Particular One , 1.1.2 is established to the requisite civil standard.
In some time in 2009 IPT, or alternatively intravenous vitamin therapy, was provided to Patient C in the home of Patient C at Edgecliff 342The HCCC relies essentially on the records of Dr Tendek, and St Vincent's Hospital to support this claim. There is no dispute that Patient C was diagnosed with testicular cancer in 1984. That cancer returned and in 2009 Patient C was found to have a large rectoperineal mass and that the cancer had metastasised to his chest. 343Patient C received standard chemotherapy treatment from a Sydney oncologist at St Vincent's Hospital. He had a portacath device inserted into his chest to administer chemotherapy drugs intravenously. His oncologist noted in a letter to the Registrar at St Vincent's Hospital that he was "investigating some alternative treatment in Austria". Ms Sharp submits we should draw the inference the alternative treatment was IPT. We accept that inference is open on the evidence. 344During April/May 2009 Patient C was an in-patient at St Vincent's Hospital where he underwent a different type of chemotherapy. Hospital nursing notes indicate that he asked for his portacath to be left in situ so that he could receive high dose "Vit C over the weekend at a clinic". The notes also record Patient C asked that Dr Segalov, his then treating oncologist, not be told about his proposed vitamin therapy. The notes then refer to a discussion with Patient C about the "detrimental effect of Vit C while on chemotherapy. At this time the nurse informed the oncologist of the request about leaving in the portacath site. Dr Segalov is reported to have advised against that course". 345Patient C saw Dr Tendek at the BJMP on 4 November 2009 immediately after her consultation with Patient A and the practitioner. She recorded that Patient C was having "IV vit C and B17". Dr Tendek gave evidence, which we accept, that she did not administer intravenous vitamin therapy at the BJMP, nor do her records show she prescribed vitamin C for Patient C. 346As noted under "background", on 4 December 2009, in a telephone consultation with Patient C, Dr Tendek noted that his portacath "has become very friable and unable to use for IPT. Happened 3 days ago. Having regular IV IPT instead". 347In her cross-examination Dr Tendek agreed she had discussed IPT with Patient C. However she asserted the entry in her notes about Patient C having regular IV IPT instead of IPT via his portacath did not make sense and that she must have made a mistake. She then said the entry "regular IV IPT" was a mistake because "I wasn't aware of whether he had IPT or not". Later in her cross-examination Dr Tendek said that she must have made a mistake in her notes because Patient C "hadn't started IPT" (transcript 17 July 2013 p 80). 348It is the practitioner's evidence that, while she was employed at the Vita Centre and Patient C was undergoing intravenous vitamin therapy at that centre, Patient C's wife asked her to forward her husband's CT scans to Mr K. The practitioner states her only involvement with Patient C was to forward his scans to Mr K. 349It is not in dispute that during the period from May 2009 until February 2010 Mr K was overseas.
Findings in respect of administration of IPT or intravenous vitamin therapy to Patient C 350We accept that Patient C did receive intravenous vitamin therapy at a clinic during 2009 and that he did so with the vitamins being introduced via his portacath. We found Dr Tendek's explanation she had a made mistake in her clinical notes of 4 December 2009 about Patient C receiving IV IPT unconvincing, and we accept and prefer what she recorded in her notes as accurately recording the patient's treatment. 351While there appears to be a link between Patient C and the practitioner by reason of her sending his CT scans to Mr K, and his move from the Vita Centre to the BJMP, we are not satisfied to the requisite civil standard that there are relevant substantiated facts from which we could draw an inference that the practitioner administered IPT to Patient C either at the Vita Centre, or at his home in Woollahra. Nor are we satisfied, that she administered intravenous vitamin therapy to him under the "supervision" of Mr K. We do not find particular 1.1.3 established.
Provision of IPT to Patient B between September 2009 and 1 March 2010 at the cosmetic clinic 352In commencing our discussion of this topic, we note that the practitioner concedes that she was involved with Mr K in the administration of IPT to Patient B, but denies that the administration took place at her cosmetic clinic. She asserts that she was only involved with the administration of vitamin C on one occasion. It is her evidence in her statement that Mr K did have a consultation with Patient B at her clinic, in early February 2010, but she refused permission to Mr K to administer IPT at the clinic. She also states that she refused to permit Mr K to administer a second treatment to Patient B at her sister's home, and told him "No more treatments like this until you set up your practice". 353Mr Sloan's notes taken at the HCCC interview are relevant. He recorded the practitioner saying "Mother said she couldn't afford hotel room" "[Patient B's first name] treatment at Narellan. Did work as a registered nurse there". The HCCC's typed part of the record of interview (which was prior to the "lost" portion of the interview) notes the practitioner saying Patient B had "a lot of issues including accommodation". Patient B's mother had come from Tasmania and that she [the practitioner] "reluctantly and under a lot of pressure" agreed [to assist with the administration of IPT]. The practitioner explained to the HCCC investigators that Mr K was going to set up practice with a doctor in the Ashfield/Homebush area and Patient B was to have his treatment there, however a decision was made to bring the treatment forward because of Patient B's condition. The proposed western suburbs doctor was going on holidays. The practitioner is recorded as saying "They just wanted a venue; I wasn't going to offer my house. I ended up saying yes - where I work my own business (Skin Deep). I didn't tell them I owned it though because I didn't want it to be regular. I did work for him as a registered nurse at my business". She went on to explain that when Patient B asked when should he come back Mr K replied "Monday" but that she said "No more ... I'm in trouble at work". 354We have already found that the practitioner knew by 10 February 2010 that Mr K was not registered. We also note that Patient B consulted Dr Tendek on 29 January 2010 and again on 12 February 2010. By the date of the latter consultation he was noted as not having commenced IPT. By 26 February 2010 Dr Tendek's clinical notes reveal Patient B reported to her that he had received 3 IPT treatments. This is identical with the reporting by Patient B to the psychiatrist at Campbelltown Hospital where he was admitted on 1 March 2010. We accept this evidence as providing a reliable time-frame of when the administration of IPT occurred. 355Dr Tendek also gave evidence that Patient B had told her that the practitioner had administered IPT to him. She said "He told me that she had administered it but I don't know whether it was for all the sessions or for how many sessions". 356The practitioner, in her cross examination, denied she had been involved in the administration of IPT to Patient B on more than one occasion, or that the administration had occurred at her cosmetic clinic. She maintained the position that the only occasion Patient B attended her clinic was for a consultation and the administration took place at her sister's house at [in inner western suburb of Sydney]. She also denied having referred Patient B to Dr Tendek and asserted he would have found her practice independently because of the small number of practitioners offering alternative medicine. 357The practitioner also relied on a statement of her sister, Ms JC, who said that the practitioner had telephoned her and asked if she could use her house for a treatment in her absence.
Findings administration of IPT to Patient B at the cosmetic clinic 358The Tribunal was not able to accept the evidence of the practitioner on this topic and found it inherently unbelievable. 359We are satisfied that the practitioner did discuss Patient B with Dr Tendek, and given the timing of his consultation with Dr Tendek, it is more probable than not the practitioner referred him to that doctor. 360We are also satisfied that Patient B received IPT at the practitioner's beauty clinic. We do not accept the practitioner's explanation that the HCCC wrongly drew the conclusion the IPT took place at her clinic rather than just a consultation. Nor do we accept the practitioner's sister's evidence on this topic in her second statement. We found Ms JC an unreliable and partisan witness, and that the similarities in her statement and that of the practitioner supports an inference of improper collaboration. We are satisfied that this part of the practitioner's evidence is untruthful. We accept and prefer the evidence recorded in the HCCC interview to that of the practitioner. 361Patient B was anxious to have IPT. He reported to both Dr Tendek and the psychiatrist that he had received 3 treatments the last being about 26 February 2010. He was living in motel within 3 minutes walking distance from the practitioner's cosmetic clinic. There is no suggestion that at this time Mr K had any other premises from which he could administer IPT. 362We have considered Mr RK's statement that Patient B's mother told him early in the morning of 1 March 2010 that, not only was Mr K involved in the administration of IPT to Patient B, but that Patient B had received treatment in IPT from a GP at Bondi Junction. Neither Patient B's mother nor Mr K were said by Mr RK to be prepared to disclose the name of the Bondi Junction general practitioner. It is outside the scope of this complaint for us to speculate or make findings about the identity of the unnamed general practitioner. However, we also note one day later, after he had obtained further information from his father, Mr RK reported that the treatments took place at "Ms Nolan's place of employment which is a cosmetic and laser clinic at 352 Camden Way, Narellan".[original spelling] 363We draw the inference from the hospital notes at Campbelltown Hospital that IPT was administered on three occasions to Patient B, that the treatment took place, at least on one occasion, at the cosmetic clinic which is located in close proximity to the motel. Further, we are satisfied that the practitioner was involved in assisting Mr K in circumstances where she knew Mr K was not registered. We are satisfied that Particular 1.1.4 is established. 364We accept Ms Miller's opinion that the practitioner's conduct was, in such circumstances, a significant departure from the conduct of a practitioner of equivalent level of training or expertise.
Particular Two. 365There was significant debate during the course of the hearing and in counsels' submissions about the breadth and meaning of Particular Two. It is therefore useful at this point that we set out the particular in full: Between around August 2008 to 2 March 2010, the practitioner, in the presence of [Mr K] administered IPT, which she knew was an experimental cancer treatment in Australia, to Patient B and/or Patient A (who was her brother) and/or to Patient C and/or Patient D on the occasions referred to in 1.1.1 - 1.1.4 above. 366Given our findings set out above, this particular is only relevant to Patient B. Ms Sharp opened her case explaining this particular in the following terms: "The gravamen of the complaint is she administered IPT to these patients". In her closing submissions Ms Sharp expanded her description of the particular to say "this is where the scope of practice fits in". Ms Sharp submitted the administration of IPT to Patient B was not only outside the practitioner's scope of practice, but it was unethical and improper. She also said that the administration of insulin because of the change wrought in a patient's blood sugar levels is inherently dangerous. She pointed out that on her own evidence the practitioner:
Discussion Particular Two 372We accept that if the particular is read in isolation from the material under the heading "Background to the Complaint" it does not, on its face, raise directly, nor does it infer, that the administration of IPT by the practitioner was outside her scope of practice, and the arguments raised by Mr Cheshire have considerable force. Argument on this topic could have been avoided if the particular itself clearly spelt out that it was asserted that the administration of IPT was outside the practitioner's scope of practice or skill base, or its administration demonstrated a lack of appropriate judgment by the practitioner. 373It appears to us that what is relevant is whether this complaint is "formulated in appropriate terms" such that the practitioner knew the case she had to meet. 374It must be remembered that the complaint itself is one of unsatisfactory professional conduct by reason of the practitioner's conduct demonstrating that the knowledge or judgment she possessed or the care she exercised was below the standard reasonably expected of a practitioner of an equivalent level of training or experience or was improper or unethical conduct relating to the practice or purported practice of nursing. 375The "background" set out under Complaint One refers to the practitioner "using her skills" and squarely asserts the practitioner had no formal training in IPT. We accept the material in background infers that the practitioner's skills (or lack thereof) in administering IPT are in issue. 376Again it is instructive to have regard to the particulars supplied to the practitioner's solicitors following their request for further and better particulars. By letter dated 6 August 2012 the HCCC noted "The purpose of particulars in a case before the Tribunal is to put the practitioner on reasonable notice of the accusations made and the case to be met (Johnson v Miller (1937) 59 CLR 467,489,495, 497) The practitioner's solicitors in their letter dated 18 July 2012 sought further particulars including the following in respect of Particular Two: (7)Please explain what is meant by and the relevance of: (a)IPT being "an experimental treatment in Australia" in 2.1.1.; (b)[the practitioner] having "no formal training" as alleged in 2.1.2; (c)the provision of IPT being "outside the scope of her practice" as alleged in 2.1.3. 377In responding to a request in respect of this particular the HCCC said: (7) (a)IPT is an experimental cancer treatment in Australia in that it is not regarded as an accepted form of cancer treatment in Australia. There is a lack of clinical evidence supporting the efficacy of IPT as an anti-cancer treatment. The Victoria Cancer Council publication "Complementary and Alternative Cancer Therapies (Feb 2009) publication states at pp 58 to 59 that IPT is one of the alternative cancer treatments that "can be very dangerous to use and there is no scientific evidence to support [its] safety or effectiveness in people with cancer" and that IPT can have "very serious side effects". (b)[The practitioner] has no training by a recognised medical or training provider in the provision and administration of IPT. (c)Prior to the events alleged, [the practitioner] had no experience in the administration of IPT and had no formal training in IPT.
Findings - Particular 2 378While we have expressed our concern about the way this particular is drafted, in the context of the material set out in the background to the complaint, the answer given in response to the request for further and better particulars, together with the expert evidence in the reports of Dr Wong and Ms Miller, we are satisfied the practitioner was not unfairly prejudiced by not knowing the case she had to meet. The Tribunal is reinforced in its view by the particulars provided to the practitioner's solicitors as early as August 2012, and the discussion in the experts' reports served on the practitioner's solicitors well prior to the hearing. 379The practitioner gave evidence that she did have experience in the administration of chemotherapy drugs as part of her practical experience in the hospital system. Her evidence about the dangers inherent with the administration of such drugs was highlighted by her own evidence when she said that during the administration of IPT to Patient B that she and Mr K "doubled gloved", had worn plastic gowns and used drop sheets. She also referred to Mr K telling her he had an emergency supply of insulin. But crucially the evidence before the Tribunal is that:
Particular Three 386The broad thrust of this particular is that the practitioner obtained medication for the purpose of administering vitamin therapy to Patient A, Patient C and Patient D in the knowledge a registered medical practitioner had not written a prescription for the medication, and had not assessed the person for the purpose of receiving intravenous vitamin therapy. 387As with earlier particulars this particular merges treatment asserted to have been provided to the three named patients over a period from August 2008 to March 2010. We propose to examine the particular in respect of each individual patient.
Patient D 388It is convenient that we commence our discussion of this particular insofar as it is relevant to Patient D. We refer to our earlier discussion and findings about the administration of vitamin C therapy to Patient D. We repeat our finding that the practitioner was, by May 2009, when the administration of vitamin C took place in Patient D's friend's home at Glebe recklessly indifferent to whether or not Mr K was registered. It follows therefore that she could not have been satisfied that he could properly assess the patient's suitability to receive vitamin C intravenously, or to authorise or order specified quantities of vitamin C to be administered intravenously to Patient D. 389Dr Tendek's evidence on this topic, which we accept, is that a practitioner should assess a patient's suitability for this therapy and write an order for the quantity and frequency of administration of the therapy. We note that the word "prescription" and "order" were used interchangeably by Ms Miller, Dr Wong and Dr Dettman during the hearing. 390We also repeat our findings about the source of the vitamin C noting that we accept as accurate the statement of the practitioner in the HCCC interview that she obtained the vitamin C from Mr Ameisen. We are satisfied this particular is established insofar as it relates to Patient D.
Patient C 391There is no dispute that the practitioner first met Patient C when he became a patient at the Vita Centre where he received regular intravenous vitamin C. 392The hospital notes refer to Patient C reporting he was, on or about mid May 2009 planning to have vitamin C therapy "at a clinic over the weekend". That clinic was probably the Vita Centre. 393Dr Tendek's clinical notes of 4 November 2009 indicate that Patient C was then "having IV vit C and B17". The Tribunal accepts that Dr Tendek did not prescribe any vitamins for Patient C at BJMP. She may have done so at the Vita Centre. 394The notes from St Vincent's Hospital also assert use of Patient C's portocath being regularly accessed by a nurse at a vitamin clinic. 395The evidence to support this particular insofar as Patient C is concerned in our view falls short of the necessary evidentiary standard to prove the particular. We note that no records were produced by Mr Ameisen for this patient although he was clearly a patient at the Vita Centre for some time. Those notes may have established all Patient C's intravenous vitamin therapy took place at the Vita Centre. 396There is no evidence, save for the large quantities of vitamins and other medicines obtained by the practitioner from Biological Therapies, which links her with the administration of intravenous vitamin therapy to Patient C after he commenced seeing Dr Tendek at the Vita Centre in November 2009. This particular insofar as it relates to Patient C is not established.
Patient A 397The practitioner did not dispute that she obtained prescriptions for vitamin B, sodium ascorbate (vitamin C), EDTA (a collating agent for heavy metals used in chelation) alpha lipoic acid and glutathione made out in her name from Dr Tendek for the purpose of intravenous self-administration and for administration to Patient A. She gave oral evidence that Patient A received combined EDTA and sodium ascorbate together about once a week. She also said medications obtained pursuant to the prescriptions written by Dr Tendek were for herself and Patient A. 398Dr Dettman in his oral evidence explained that vitamin C, alpha lipoic acid and glutathione are used as supportive antioxidant measures. Dr Dettman, whose evidence on this area was not challenged, said that alpha lipoic acid and glutathione require a prescription. 399Mr Cheshire outlined his client's position in relation to this particular in his opening as follows: The intravenous vitamin therapy; the answer to that it was all obtained at the orders of registered medical practitioners. What she obtained was vitamin therapy for her brother, and she was entitled to do so. Sorry it was obtained at the direction of a registered doctor, whether Dr Myson [semble Ameisen] or Dr Tendek. She was entitled to administer it, and did administer it. (Transcript 15 July 2013 p 38) 400Although all of Dr Tendek's records were not initially produced to the HCCC she asserted that her complete records were available after the fourth day of the hearing. Those records do not reveal any prescription in the name of Patient A for vitamin C and other antioxidants or medicines until 10 February 2010. Dr Tendek admitted in cross-examination she had written prescriptions in the practitioner's name for substances including Vitamin C, alpha lipoic acid and glutathoine intended for both the practitioner and Patient A. 401Dr Tendek also agreed in cross examination she did not write out an order for the administration of vitamin C for Patient A. In answer to a question posed to her by Ms Sharp she explained her role, and that of other general practitioners employed at the Vita Centre, when a patient received intravenous vitamin therapy as follows: A. The so I would obviously if there were existing notes I would read the notes and then I would have a consultation with the patient. Ordering in pathology tests is required, and if they weren't already written up for the intravenous vitamins then I would write up the schedule for the intravenous vitamins. 402She later explained that it was the schedule or order which the nurse followed in the administration of the vitamin therapy in accordance with a manual or protocol of the centre. While Dr Tendek or another registered medical practitioner were not necessarily in the room when the intravenous vitamin therapy was in progress, they were on the premises in the case of an emergency or adverse reaction of a patient. 403Dr Dettman gave evidence that the only drugs requiring a prescription which were supplied to Dr Tendek's rooms pursuant to a prescription in the practitioner's name were alpha lipoic acid and gluthathoine. He also gave evidence, which we accept, that it is the practice of his company only to supply vitamins, and other medications, regardless of whether or not a prescription is needed, to a registered medical practitioner. We discern from his evidence that this practice is to ensure appropriate assessment of the patient and supervision by the registered medical practitioner of the administration of the vitamins and medications supplied. 404Dr Tendek was extensively questioned about her prescribing of vitamin C, and other medications, which she described as antioxidants, in the name of the practitioner, and her knowledge that those medicines were also for Patient A. She explained how these medicines would be administered under supervision. She agreed, on the definition of supervision put to her by Ms Sharp, she had not supervised the practitioner: Q. I'm talking about it as an ordinary medical practitioner does supervise a patient with IV vitamin therapy that you look at their clinical history, you assess what vitamin therapy they need. You write them prescriptions for medication requiring prescriptions or schedules for other medications to be administered intravenously and you supervise the nurse who is actually physically administering the vitamin therapy. With that definition in mind, you did not supervise the administration of vitamin therapy to [Patient A], did you? Q. So I defined "supervision" for you. You did not, on that definition of supervision, supervise the administration of vitamin therapy to [Patient A], did you? A. On that definition, no. Q. You did know that [the practitioner] was administering vitamin therapy to [Patient A]? A. Yes. Q. But you did not supervise that administration did you? A. Well I wasn't physically present in the room, no. ... Q. Using the same definition of supervise that I just gave to you, you did supervise patients at the Vita Centre in that way when they were being administered with intravenous vitamin therapy didn't you? A. Yes. Q. At the Vita Centre you did make inquiries to ascertain in what way the intravenous vitamin therapy would be administered, didn't you? A. Yes. Q. For example, you made inquiries as to whether it would be administered by a portacath or whether it would be administered by a drip or an ordinary injection didn't you? A. Yes. Q. That was part of your ordinary supervisory function at the Vita Centre wasn't it? A. Yes. Q. That was not what you did in relation to [Patient A] in November and December 2009 when you were aware that he was being administered vitamin therapy by his sister was it? A. No, on that definition, no. 405Dr Tendek's evidence clearly disclosed that she did assess Patient A, who she saw regularly from 9 November 2009 until 23 December 2009, but not thereafter until 10 February 2010 when he was suffering from a portocath infection. She was well aware he was to receive intravenous vitamin therapy administered by the practitioner. That therapy was not confined to the administration of vitamin C as disclosed in prescriptions dispensed by Biological Therapies and the practitioner's own evidence. 406Mr Cheshire pointed out criticism might be levelled at Dr Tendek for not writing out an order as to the dosage and frequency for the administration of vitamin C in the name of Patient A, but he submitted, as the complaint is directed to asserted unprofessional conduct by the practitioner because she administered vitamin C without a prescription having been written for her brother, that the particular was not established. 407If the particular was limited to the administration of vitamin C therapy without a registered medical practitioner writing a prescription for how the therapy should be administered we would have found some merit in Mr Cheshire's submission. However, notwithstanding Mr Cheshire sought, understandably, to confine the particular to the practitioner's conduct in the administration of vitamin C, the particular is not limited to vitamin C, but to "intravenous vitamin therapy". We find, given two medicines obtained by the practitioner from Biological Therapies, which she acknowledged were both for her use and Patient A's use as part of the intravenous vitamin therapy, required prescriptions, the complaint not to be as narrow as asserted on behalf of the practitioner. 408We accept Patient A was assessed by a registered medical practitioner, who was well aware he was to receive intravenous vitamin therapy, and reported this fact to St Vincent's Hospital. This part of the particular is not established. However, we are comfortably satisfied the practitioner was well aware that Dr Tendek had, until February 2010, written the necessary prescriptions for gluthoine and alpha lipoic acid in her name, not the name of Patient A and notwithstanding this fact she administered medicines prescribed in her name as she and/or her brother determined. Thus we are satisfied this particular is established, but only in part.
Particular Four 409This particular states that during the period August 2008 to 2 March 2010 the practitioner administered IPT and or intravenous vitamin therapy to her brother. We repeat our earlier findings that we are not satisfied on the evidence before us that the practitioner administered IPT to her brother during the relevant period. 410We are comfortably satisfied, for reasons early enunciated that the practitioner did administer intravenous vitamin therapy to her brother. This particular is also established in part.
Particular Five 411The establishment of this particular raised again the language used in the particular, and whether or not the HCCC complied with the rule in Browne v Dunn by putting to the practitioner the precise allegations made against her. 412We commence our discussion with what may be described as the less controversial sub-particulars. 413No challenge was raised to particulars 5.4, 5.5, 5.6 and 5.7 and we accept those particulars are established. They essentially refer to the statutory regime applicable under the Therapeutic Goods Act and the register established under that Act, the ARTG. Particular 5.7 relates to offences under 36A of the Poisons and Therapeutic Goods Act. The latter section make it an offence to supply by retail therapeutic goods that are not registered or listed in the ARTG, or which are not exempt goods, or the subject of an approval or authority under s 19 of the TGA. 414Particular 5.3 asserts Mr K, in late January 2010 or February 2010, brought named chemotherapy drugs into Australia for use in IPT. 415The practitioner gave evidence that Mr K had returned to Australia in about February 2010 and may have brought into the country unspecified chemotherapy drugs. Although in her oral evidence the practitioner claimed she could not remember which chemotherapy drugs were administered to Patient B, in her interview with the HCCC (which occurred reasonably proximate to Patient B's treatment) her solicitor recorded Topicide [semble Etopicide] Bleomycin, cuplatin [semble Cistplatin] and insulin as having been administered. These drugs, except insulin, are included in the drugs listed in Particular 5.2. 416While we cannot be comfortably satisfied that Mr K brought each of the chemotherapy drugs listed in Particular 5.2 into Australia, we are satisfied on the evidence before us it is safe to draw the inference that he did bring at least the three named drugs administered to Patient B into Australia in about January or February 2010. We are satisfied it is more probable than not that some combination of these chemotherapy drugs were used to treat Patient B given the proximity of Mr K's return to Australia and Patient B's treatment. 417The HCCC assert that chemotherapy drugs are "therapeutic goods" as defined in s 3 of the TGA. The HCCC rely on 36A of the Poisons and Therapeutic Good. That section provides as follows: 36A Offence to supply unregistered or unlisted goods (1)A person who supplies by retail therapeutic goods to a person is guilty of an offence unless: (a)the goods are registered goods or listed goods, or (b)the goods are exempt goods or are the subject of an approval or authority under section 19 of the Commonwealth Act. Maximum penalty: 20 penalty units. (2)This section applies to therapeutic goods that are for use in or on humans, but does not apply to: (a)a supply of therapeutic goods that are listable devices within the meaning of the Commonwealth Act, or (b)(b) a supply of therapeutic goods by a person who is a sponsor within the meaning of that Act. s19 of the Commonwealth Act empowers the Commonwealth Secretary to grant approval for the import, export or supply of therapeutic goods for the treatment of a person or for use solely for experimental purposes in humans. 418The word supply is defined in s 3 of the Poisons and Therapeutic Goods Act as follows: "Supply" includes: (a)sell, dispense and distribute, and (b)supply, whether free of charge or otherwise, by way of sample or advertisement, and (c)supply, whether free of charge or otherwise, in the course of testing for safety or efficacy on persons or animals, and (d)agree or offer to sell or distribute, and (e)keep or have in possession for sale, dispensing or distribution, and (f) send, forward, deliver or receive for sale, dispensing or distribution, and (g)authorise, direct, cause, suffer, permit or attempt any act mentioned in paragraphs (a)-(f). 419The word retail is not defined in the legislation. The Macquarie Dictionary definition of the word retail includes: "the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to wholesale); related to, connected with, or engaged in sale at retail; ... to sell directly to the consumer". 420The concept of sale by retail is discussed by Sheahan J Bardsley -Smith & Anor v Penrith City Council & Others [2012] NSWLEC 79. Although his Honour's orders were overturned on appeal, his discussion of sale by retail and the authorities he cited were not relevant to the findings the appeal. His Honour said at 59 The words "sale" and "retail" are not defined, but have been held to have, as their ordinary meaning, that of a sale, as in transfer of property for money, to customers not themselves engaged in the retail trade, not wholesale. The volume or quantity must be not larger than is necessary to satisfy the requirements of "the ordinary man in the street". Defining a retail sale in terms of small quantities and ultimate consumers finds support in the recognised dictionaries. See Chan v Dainford Ltd [1985] HCA 15; (1985) 155 CLR 533, Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 588; (1993) 114 ALR 531, and also Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244, in which (at 258-9) Cole JA discussed in some detail the differences between "wholesale" and "retail", and the concept of "warehouse". 421Particular 5.2 asserts, in June 2009 and January 2010, the practitioner engaged in emails exchanges whereby she requested Mr K to obtain certain chemotherapy drugs in India. The evidence on this topic ranged over emails retrieved from Mr K's computer by Mr RK, the practitioner's evidence and that of her husband Mr David Fraser, ("Mr DF"), her sister Ms JC, and an acquaintance, Ms Mary Mondous ("Ms M"). 422Ms JC in her first statement says she was present in the practitioner's kitchen on 28 June 2009 about 9pm when the practitioner received a call on her mobile phone, and that she "wrote down what the doctor appeared to dictate to her". 423Ms M is woman whose children attended the same school as those of the practitioner and her husband. Ms M provided a statement in which she said on 28 June 2009 she was present at the practitioner's home for a birthday party for one of the practitioner's children. Ms M goes on to state that she was with the practitioner in her kitchen when her phone rang and she overhead the practitioner's side of the telephone conversation. She states the practitioner said "I don't know Dr K, whatever you think [Patient A's first name] needs, you're the doctor". She says the practitioner asked for a pen and then said "can you spell that." She reports the practitioner had difficulty spelling some of the words and at the end of her conversation said "I've got to go and email this to Dr K" and then went into the study. 424Mr DF states that, on the occasion of a birthday party, Mr K rang and spoke to the practitioner. He states "there was a rush of writing by [practitioner's first name], then she disappeared into the Study to send yet another 'urgent' email to [Mr K]". 425Mr DF also refers to another conversation between the practitioner and Mr K on or about 28 January 2010. He asserts he heard the practitioner say "What other list", "Whatever you need for [Patient A's first name]". He then says the practitioner motioned him to get a pen "and [Mr K] dictated a list of medications to [the practitioner], she repeated them out loud while I wrote them down". He says at the conclusion of the phone call the practitioner took the list he had written down and sent it to Mr K. 426The practitioner denied asking Mr K to purchase chemotherapy drugs, and says her emails were responsive to requests from Mr K. 427We have set out the texts of the relevant emails under "background" (paragraphs 73, 103, 104, 122, and 123).
Findings Particular 5.2 428The Tribunal did not find Ms JC to be a reliable witness. The similarities in her second statement and that of the practitioner's statement cast significant doubt in our minds about the veracity of their evidence on the topic of that statement. We found the language employed, and the similarity of the sequence of events, recorded in Ms M's statement and that of Ms JC caused us considerable disquiet as to the evidence given concerning their preparation. 429A number of aspects of the evidence about the evening of 28 June 2009 adduced on the practitioner's behalf were unconvincing or caused us significant doubts about the evidence adduced. We found it unusual, to say the least, that both Ms M and Ms JC, having been asked in March 2010 by Patient A to write down and keep a record of their recollection of the practitioner's conversation with Mr K that evening, had each destroyed their original note. This occurred despite, on their own evidence, each having retained their respective note for a period of three years. Their evidence would have had much greater cogency had their original handwritten notes been produced. Further, Ms JC in her oral evidence, said she had been with the practitioner at the time she wrote her response to Mr K, and dictated to her the names of the drugs from the practitioner's handwritten statement, a significant detail omitted from her statement. 430The timing noted on the various copies of the email sent by the practitioner on 28 June 2009 produced on this topic (see Exhibit S) also raised doubts in our minds as to the authenticity of some copies of the email produced. However, as we did not have the benefit of any expert evidence on this aspect of the evidence we consider it would be unsafe to take it into account. We have not placed any weight on that matter. 431We find the practitioner's wording in her response to Mr K to be inconsistent with her version of events. If she was merely typing back a list dictated to her by Mr K then there was no reason for her to write "Here is the detailed list" in response to his email "pl send a detailed list". 432Ms M gave her evidence in a forthright manner. She was not shaken in cross-examination. Notwithstanding the misgivings we have earlier expressed, we accept her evidence as her truthful recollection of the events that evening. We accept she remembered the evening because she heard the practitioner say to Mr K words to the effect "don't punish [Patient A's first name]" and she found this response unusual. 433Notwithstanding our serious misgivings about the evidence adduced on this topic by and on behalf of the practitioner, we are not comfortably satisfied that this event falls within the facts as pleaded in Particular 5.2 in light of our findings about Ms M's evidence. In reaching this finding we have had careful regard to Dixon J's remarks in Briginshaw. 434Mr DF's evidence on this topic does not sit comfortably with the wording of the email from Mr K of 19 January 2010 and the practitioner's reply dated 28 January 2010. We found it to be significant that the practitioner initially failed to produce these emails pursuant to a summons issued by the HCCC in June 2012, and the documents were only finally produced over a year later. The Tribunal accepts the email correspondence as the objective and reliable evidence on this topic. We accept and prefer that evidence to that of Mr DF. 435We are comfortably satisfied that, on 28 January 2010, the practitioner did request Mr K to bring the chemotherapy drugs listed in her email into Australia. We are also comfortably satisfied that the practitioner was familiar with the chemotherapy drugs which her brother received in the US. In reaching this finding we do not accept the practitioner's evidence on the topic of the notes appearing under "Collaborative History" in Patient A's clinical notes. We are fortified in our conclusion about the practitioner's detailed knowledge of chemotherapy drugs received by Patient A by Dr Tendek's evidence that the practitioner was familiar with Patient A's medications and discussed his history with her. We accept this part of Dr Tendek's evidence to be reliable. We also find the practitioner told the HCCC investigators in the s 34A interview the precise names of the chemotherapy drugs received by Patient B. 436We now turn our attention to the first sub-paragraph relied on by the HCCC, Particular 5.1.
Discussion and findings 5.1 437Counsel in these proceedings adopted the practice of asking questions in cross examination to satisfy compliance with the rule in Browne v Dunn. Given the requirement to observe the rules of natural justice, and the serious consequences of a proven complaint of unsatisfactory professional conduct or professional misconduct we see much merit in a case such as the instant one, in the rule, if appropriate, being applied. 438Mr Cheshire submits that while the practitioner was extensively cross-examined about the email exchange between herself and Mr K requesting him to bring chemotherapy drugs into Australia that it was never put to her that she did so in circumstances where she knew or was recklessly indifferent to the fact the drugs were not listed or registered in the ARTG or otherwise authorised, approved or exempted under the TGA. We accept that submission is soundly based. 439There is no doubt that the practitioner was questioned extensively about her emails, and it was put to her that her explanation about Mr K ringing her and asking her to write down chemotherapy agents was a "complete fabrication" (transcript 4 December 2013 p 613). 440Ms Sharp also put to the practitioner that she "collaborated with [Mr K] to bring chemotherapy medications into this country from overseas". But, as Mr Cheshire asserts, at no stage was the practitioner afforded the opportunity to deny she knew the drugs were not listed or registered on the ARTG, or otherwise authorised, approved or exempted under the TGA. Nor was it put to her the importation of the chemotherapy drugs was so those drugs could be supplied by retail. 441We distinguish our findings based on the rule in Browne v Dunn in respect of this particular with our conclusion that the overall questioning of the practitioner in respect of Particular One complied with the rule. As a consequence, we find Particular 5.1 is not established. As this particular is the foundation on which the remainder sub-paragraphs are principally based, we find Particular 5 is not established to the requisite standard.
Particular Seven 442This particular was added to the complaint by leave granted by the Tribunal on 26 November 2013. This particular alleges that the practitioner participated with Patient A in the procurement of Bleomycin from Dr Tendek for the purpose of the practitioner administering the medication in the knowledge that the administration of that drug was not to be supervised by a registered medical practitioner. 443After the discovery of Dr Tendek's additional documents during the course of her evidence in July 2013 the practitioner filed an additional statement dated 27 November 2013. 444The practitioner agreed that she did administer medications to Patient A, but asserted that he also self-administered injections on many occasions. 445The practitioner asserts that when she and Patient A attended Dr Tendek's rooms at the BJMP in November or December 2009, Patient A handed Dr Tendek a piece of paper with something written on it and requested Dr Tendek provide a prescription for him as Dr Kalokerinos had treated him intermittently with it, and that she (Dr Tendek) had prescribed it once previously at the Vita Centre. 446The practitioner asserts Dr Tendek asked her if she would be administering "this to [Patient A] as part of Dr Kalokerinos' treatment for Patient A". The practitioner asserts that she said that she did not know what Dr Kalokerinos had been treating Patient A with, but if that doctor wanted her to administer it, she would do so. The practitioner denies ever administering Bleomcyin to Patient A. 447Mr Cheshire's submissions on the particular are, in effect, that no criticism can be levelled at the practitioner, rather if any criticism is warranted it should be directed to Dr Tendek. 448Ms Sharp took Dr Tendek to her clinical notes for 23 December 2009. Dr Tendek agreed she had prescribed cyclophosamide tablets and that was a chemotherapy medication. When it was put to her that drug was a chemotherapy drug and outside the scope of her practice she responded saying Patient A had been on it previously. Dr Tendek, when questioned about her prescription for Patient A for Bleomycin written on 18 November 2010, explained Patient A had asked for this drug because it was treatment prescribed "by his oncologist" (not Dr Kalokerinos). She agreed she had taken no steps to check with Patient A's oncologist, Professor Tattersall, whether he was being prescribed Bleomycin. She agreed to prescribe such a drug was outside her scope of practice. 449Professor Tattersall confirmed in his affidavit that he did not prescribe Bleomycin for Patient A, and that the dosage prescribed by Dr Tendek was, in his experience, "quite a high dose". 450We note the MIMS entry for Bleomycin records that "it is recommended that BLENOXANE be administered under the supervision of a qualified physician experienced in the use of cancer chemotherapeutic agents. Appropriate management of therapy and complications is possible only when adequate diagnostic and treatment facilities are readily available". We also refer to our acceptance of Professor Tattersall's report and his reference to the dangers inherent with the administration of Bleomycin, and that it is not generally prescribed by general practitioners. 451The PBS records obtained by the HCCC disclose that Patient A was prescribed Bleomycin on 25 May 2009 by Dr Kalokerinos, and on 12 August 2009 and 23 December 2009 by Dr Tendek. There is no record of a prescription for Bleomycin prescribed on 18 November 2009 in the PBS records notwithstanding the entry in Dr Tendek's notes. This may simply be a recording error in the PBS records. 452It is clear that Patient A had, on two other occasions, apparently independently of the practitioner, obtained prescriptions for Bleomycin. Mr Ameisen's notes, if produced, may have shed light on the circumstances surrounding the earlier prescriptions. 453There is also some evidence that Patient A's infected portacaths suggest regular accessing for intravenous usage, which probably included the administration of Bleomycin. On this point we accept the evidence of Professor Tattersall about the unusual nature of the infections suffered by Patient A notwithstanding the reason advanced for his recurrent infected portacaths was found in respect of one portacath to be due to residue of one earlier portacath being retained in situ when it was removed. The practitioner told Professsor Tattersall on 2011 that she accessed her brother's portacath for the purpose of administering medications. 454Professor Tattersall, who prescribed Rituximab for Patient A in July 2011, deposed at paragraph 37 of his affidavit: If intravenous chemotherapy treatments were being given to [Patient A] during the time I was seeing him (in addition to Rituximab) I would have wanted to know because a lack of awareness of this on the part of a treating oncologist can add to dangerous complications of treatments given by the treating oncologist
Discussion and findings Particular Seven 455The practitioner had the benefit of hearing Dr Tendek's evidence before she prepared her supplementary statement. Her statement about the circumstances of the obtaining of the prescription for Bleomycin does not totally accord with Dr Tendek's evidence. 456Patient A was seeing Dr Tendek on a reasonably regular basis at this period of time. But Dr Tendek acknowledges she was not acting within her scope of practice in prescribing this medication. She was certainly not supervising the administration in accordance with the MIMS entry. The practitioner gave evidence she consulted MIMS to ensure she had correct dosages and routes for medications she administered. She must have been aware the medication was prescribed by a registered medical practitioner, who was simply providing a prescription and leaving the administration of this dangerous drug to Patient A by her unsupervised. We were unable to accept the practitioner's evidence that she did not administer Bleomycin as truthful. 457We find it is inherently probable having regard to Dr Dettman's evidence that the practitioner did administer Bleomycin intravenously to Patient A via a Portacath or PICC. The drug was procured from Dr Tendek in circumstances where it was known by the practitioner, and Dr Tendek, that its administration would not be supervised by her. We find this particular is proven to the requisite civil standard.
Do the particulars found to be proved demonstrate unsatisfactory professional conduct?
Findings and conclusions 458We have found that the practitioner:
Professional misconduct 464We have earlier set out the definition of professional misconduct in the National Law. It is appropriate that we refer to the type of conduct which has been found to constitute professional misconduct. In Pillai v Messiter (No 2) 1989 16 NSWLR 197 Kirby P (as his Honour then was) referred to a then recently introduced statutory test of professional misconduct applicable to medical practitioners. His Honour's comments are however apposite to consideration of professional misconduct under the National Law. 465Kirby P explained that the concept of "misconduct" may include: "gross negligence ... particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient". 466His Honour further explained at 200: Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner [citations omitted] 467The recent cases discussing unsatisfactory professional conduct and professional misconduct focus on the wording of the relevant statute and have moved away from "the language of moral obloquy" referred to in earlier decisions with peers now expressing their views "in terms of strong criticism rather than 'strong reprobation'". (see Lucire v Health Care Complaints Commission [2011] NSWCA 99; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 70 ).
Discussion and Findings Professional Misconduct 468The matters we have found proved in Complaint One, Two, Three and Seven are serious and significant departures from the standard expected of a practitioner of the practitioner's training and experience. Patient B was a very ill man whose medical history was essentially unknown to the practitioner. The treatment involving cytotoxic drugs with which the practitioner had no specialist training and very limited experience was conducted in a locale without emergency medical facilities. The practitioner was clearly aware of a risk noting that Mr K had an emergency supply of insulin. Dr Wong explained the serious risks associated with insulin treatment and its effect on cancer cells. 469Patient D's treatment in a private home, when the practitioner was recklessly indifferent to the question of Mr K's registration status, is also a most serious matter. Notwithstanding the practitioner was skilled and experienced in intravenous vitamin therapy she undertook this procedure in circumstances where she ignored the fact that Mr K did not have the qualification to adequately assess the patient's suitability for the treatment provided, nor did she know what chemotherapy the patient had received in Austria to adequately assess any risk to the patient from the intravenous vitamin therapy in those circumstances. 470The practitioner's role in facilitating her brother obtaining intravenous vitamin therapy, and the administration of Bleomycin without proper or adequate supervision also demonstrates serious errors of judgment and a significant departure from appropriate professional standards. 471We are satisfied the particulars we have found established, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Complaint Two, which alleges professional misconduct is established.
Two stage hearing 472As earlier noted, it was acknowledged at the commencement of the hearing it was not in dispute that there should be a "two stage" hearing. Accordingly the Tribunal now makes the following orders: (1)In the event that the respondent wishes to have the opportunity to provide any evidence or make any submissions to the Tribunal in respect of protective orders and costs orders it may make she shall by 17 April 2014 notify in writing the Registrar of the New South Wales Civil and Administrative Tribunal, Occupational Division ("the Registrar") and if appropriate file and serve any material on which she seeks to rely. (2)In the event there is no compliance by the respondent with Order 1 in the time provided in that order, or the respondent notifies the Registrar that she does to wish to present any material or make any submissions to the Tribunal then the Health Care Complaints Commission ("HCCC") shall within 28 days of the date of this order provide written submissions in respect of the protective orders and or costs which it seeks. APPENDIX A COMPLAINT HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) Executive Officer Nursing and Midwifery Council of New South Wales Level 6 477 Pitt Street SYDNEY NSW 2000 FURTHER AMENDED COMPLAINT The Health Care Complaints Commission, of Level 13, 323 Castlereagh Street, Sydney, NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("the National Law") HEREBY COMPLAINS THAT Nola Fraser ("the practitioner"), of 14 Kingdon Parade, Macquarie Fields, NSW 2564, ("the practitioner"), being a registered nurse (NMW0001287381) and registered midwife (NMW0001287380) under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct within the meaning of section 139B(1) of the National Law in that the practitioner has: demonstrated that the knowledge or judgement possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Background to Complaint One Insulin Potentiation Therapy (IPT) is therapy used to treat cancer patients by intravenously administering insulin, to induce low blood sugar levels, together with low doses of conventional chemotherapy drugs. IPT is generally regarded by Australian medical practitioners involved in the treatment of cancer as experimental and not scientifically proven. Intravenous vitamin therapy is a means by which doses of vitamins and nutrients are given to a patient through their circulatory system using either a drip or injection. Vitamins and minerals are put directly into the bloodstream, bypassing the gut. A nurse may only administer a drug, vitamin or nutrient intravenously to a patient with the authorisation of a registered medical practitioner. In the period from around August 2008 to 2 March 2010, the practitioner was party to an arrangement or understanding with Chittoor Krishnan that she would work for him on a casual basis as a registered nurse in providing IPT and/or vitamin therapy to cancer patients by using her skills as a nurse to provide and set up intravenous ("IV") equipment with which to treat the patient; insert a cannula into the patient; connect the IV equipment to the cannula; administer the drugs to the patient via the IV equipment and monitor the provision of those drugs to the patient, as well as liaising with patients or potential patients in relation to IPT therapy ("Arrangement"). The practitioner had no formal training in IPT. At no relevant time was Chittoor Krishnan registered as a medical practitioner in New South Wales or elsewhere in Australia. Particular One On the following occasions between around August 2008 to 2 March 2010, the practitioner provided and set up IV equipment, inserted a cannula into the patient, connected the IV equipment into the cannula, administered drugs to the patient via the IV equipment, monitored the provision of drugs to the patient via the IV equipment and liaised with the patient about the treatment, under the supervision of Chittoor Krishnan, either knowing or being recklessly indifferent to the fact that Chittoor Krishnan was not a registered medical practitioner: 1.1.1 on around 15 August 2008 and in around February 2009, IPT or alternatively, intravenous vitamin therapy, was provided to Patient A at the practitioner's cosmetic and laser clinic at 352 Camden Way, Narrellan ("Cosmetic Clinic") or at the home of Patient A or the practitioner; 1.1.2 in around April 2009, IPT, or alternatively, intravenous vitamin treatment, was provided to Patient D at the home of Patient D in Bridge Street, Westmead; 1.1.3 some time in 2009, IPT, or alternatively, intravenous vitamin therapy, was provided to Patient C at the home of Patient C in Edgecliff; and 1.1.4 some time in the period September 2009 to 1 March 2010, IPT was provided to Patient B at the Cosmetic Clinic. Particular Two 2.1 Between around August 2008 to 2 March 2010, the practitioner, in the presence of Chittoor Krishnan, administered IPT, which she knew was an experimental cancer treatment in Australia, to Patient B and/or to Patient A (who was her brother) and/or to Patient C and/or to Patient D on the occasions referred to in 1.1.1 - 1.1.4 above. Particular Three 3.1 Between around August 2008 to 2 March 2010, the practitioner obtained medication for the purpose of administering intravenous vitamin therapy and then administered intravenous vitamin therapy to Patient A (who was her brother), Patient C and Patient D, on the occasions referred to in 1.1.1 - 1.1.4 above, in the knowledge that a registered medical practitioner (a) had not written a prescription for the medication so administered; and (b) had not assessed the patient for the purpose of receiving intravenous vitamin therapy. Particular Four 4.1 Between around August 2008 to 2 March 2010, the practitioner administered IPT and/or intravenous vitamin therapy to her brother (Patient A). Particular Five 5.1 The practitioner collaborated with Chittoor Krishnan to import into Australia and then supply in Australia chemotherapy and insulin drugs to patients undergoing IPT in circumstances where she knew or was recklessly indifferent to the fact that drugs were not registered or listed in the Australian Register of Therapeutic Goods ("ARTG") or otherwise authorised, approved or exempted under the Therapeutic Goods Act 1989 (Cth) ("TGA"). 5.2 In June 2009 and January 2010, the practitioner and Chittoor Krishnan engaged in email exchanges whereby she requested him to obtain certain chemotherapy drugs in India, named in the emails as being: Methyltrexate Cyclophosamide Adramyci Vinblastin Vincristin Cistplatin Etoposide Bleomycin Fluorouracil Irinotecan (collectively, "chemotherapy drugs"). 5.3 In late January 2010 or February 2010, Chittoor Krishnan brought into Australia one or more of the chemotherapy drugs for use on patients undergoing IPT in Australia. 5.4 The chemotherapy drugs were "therapeutic goods" within the meaning of s.3 of the TGA. 5.5 The chemotherapy drugs were not registered or listed in the ARTG and were not exempt, authorised or approved under the TGA under relation to either the practitioner or Chittoor Krishnan or their patients. 5.6 It is an offence under s.19B(4) of the TGA to import into Australia therapeutic goods for use in humans that are not registered or listed in the ARTG in relation to the person so importing or otherwise exempt, approved or authorised as provided by s.19B(4)(b) of the TGA. 5.7 It is an offence under s.36A of the Poisons and Therapeutic Goods Act 1966 (NSW) to supply by retail therapeutic goods to Australia that are not registered or listed in the ARTG or which are not exempt goods or the subject of an approval or authority under s.19 of the TGA. Particular Six 6.1. Between around August 2008 and 31 March 2010 the practitioner failed to make, or maintain proper records of the treatment provided to Patients A, D, C and B on the occasions referred to in 1.1.1 - 1.1.4 above. Particular Seven 7.1. On around 18 November 2009, the practitioner participated with Patient A in the procurement of Blenoxane Powder (Bleomycin sulfate) from Dr Tendek for the purpose of the practitioner administering that medication to Patient A in the knowledge that the administration of that drug was not to be supervised by a registered medical practitioner. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Background to Complaint Two The background to Complaint One is repeated PARTICULARS OF COMPLAINT TWO The particulars of Complaint One are repeated. Dated: 22 December 2011 Karen Mobbs Director of Proceedings, Health Care Complaints Commission
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar
Amendments 15 August 2014 - Typographical amendment Amended paragraphs: Paragraph 13, 22, 138, 300, 430 and 455 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2014
Health Care Complaints Commission
Fraser
AC 337 Frost v Kourouche [2014] NSWCA 39 Hall v The University of New South Wales [2003] NSWSC 669 Kalil v Bray [1977] 1 NSWLR 356 King v Health Care Complaints Commission [2011] NSWCA 353 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Medical Board of Australia v Judge Horeman-Wren & Leggett [2013] QSC 339 Minister v Health v Thomson (1985) 8 FCR 213 Prepaid Services Pty Ltd & Ors v Alradius Credit Insurance NV [2013] NSWCA 252 Texts Cited: Cross on Evidence Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Nola Fraser (Respondent) Representation: Counsel N Sharp (Complainant)
[2005] HCA 80
[2013] QSC 339
(1999) 197 CLR 510
(2009) 239 CLR 175
(2005) 224 CLR 262
(2005) 80 ALJR 421
(1938) 60 CLR 336
(1980) 104 CLR 186
(1985) 8 FCR 213
(1937) 59 CLR 467
(1985) 155 CLR 533
(1993) 42 FCR 588
(1993) 114 ALR 531
(1996) 92 LGERA 244